[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
HIDDEN TRAGEDY: UNDERREPORTING OF WORKPLACE INJURIES AND ILLNESSES
=======================================================================
HEARING
before the
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 19, 2008
__________
Serial No. 110-97
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut [Vacancy]
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Sally Stroup, Republican Staff Director
C O N T E N T S
----------
Page
Hearing held on June 19, 2008.................................... 1
Statement of Members:
Altmire, Hon. Jason, a Representative in Congress from the
State of Pennsylvania, prepared statement of............... 50
McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member,
Committee on Education and Labor........................... 5
Prepared statement of.................................... 6
Miller, Hon. George, Chairman, Committee on Education and
Labor...................................................... 1
Prepared statement of.................................... 3
Sanchez, Hon. Linda T., a Representative in Congress from the
State of California, prepared statement of................. 51
Statement of Witnesses:
Fellner, Baruch, Esq., Gibson, Dunn, & Crutcher, LLP, on
behalf of the U.S. Chamber of Commerce..................... 24
Prepared statement of.................................... 25
McLellan, Robert K., M.D., MPH, FACOEM, representing the
American College of Occupational and Environmental Medicine 13
Prepared statement of.................................... 14
Rosenman, Kenneth D., M.D., FACPM, FACE, professor of
medicine, Michigan State University College of Human
Medicine................................................... 29
Prepared statement of.................................... 31
Ruser, John, Assistant Commissioner for Safety and Health
Statistics, Bureau of Labor Statistics..................... 18
Prepared statement of.................................... 21
Span, A.C., former employee, Bashas' Distribution Center..... 8
Prepared statement of.................................... 9
Whitmore, Bob, former Chief, OSHA Division of Recordkeeping,
U.S. Department of Labor................................... 33
Prepared statement of.................................... 35
HIDDEN TRAGEDY: UNDERREPORTING OF WORKPLACE INJURIES AND ILLNESSES
----------
Thursday, June 19, 2008
U.S. House of Representatives
Committee on Education and Labor
Washington, DC
----------
The committee met, pursuant to call, at 10:37 a.m., in Room
2175, Rayburn House Office Building, Hon. George Miller
[Chairman of the Committee] presiding.
Present: Representatives Miller, Kildee, Woolsey, Tierney,
Holt, Grijalva, Bishop of New York, Sarbanes, Hirono, Yarmuth,
Hare, Courtney, Shea-Porter, McKeon, Wilson,Kline, and Foxx.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jordan Barab, Senior Labor Policy Advisor;
Jody Calemine, Labor Policy Deputy Director; Lynn Dondis,
Policy Advisor,Subcommittee on Workforce Protections; Brian
Kennedy, General Counsel; Danielle Lee, Press/Outreach
Assistant; Sara Lonardo, Junior Legislative Associate, Labor;
Alex Nock, Deputy Staff Director; Joe Novotny, Chief Clerk;
Meredith Regine, Junior Legislative Associate, Labor; Michele
Varnhagen, Labor Policy Director; Michael Zola, Chief
Investigative Counsel, Oversight; Mark Zuckerman, Staff
Director; Robert Borden, Minority General Counsel; Cameron
Coursen, Minority Assistant Communications Director; Ed Gilroy,
Minority Director of Workforce Policy; Rob Gregg, Minority
Senior Legislative Assistant; Jim Paretti, Minority Workforce
Policy Counsel; Molly McLaughlin Salmi, Minority Deputy
Director of Workforce Policy; Hannah Snoke, Minority
Legislative Assistant; Linda Stevens, Minority Chief Clerk/
Assistant to the General Counsel; and Loren Sweatt, Minority
Professional Staff Member.
Chairman Miller [presiding]. The Committee on Education and
Labor will come to order for the purposes of conducting a
hearing on the issue of underreporting of workplace injuries
and illnesses.
And I recognize myself for the purposes of an opening
statement.
The Occupational Safety and Health Act of 1970 requires the
U.S. Department of Labor to collect and compile accurate
statistics on occupational injuries, illness and fatalities in
the United States.
Accurate injury and illness records help the Occupational
Safety and Health Administration better allocate its resources,
accurately target its inspections, and evaluate the success of
its efforts to improve the health and safety of American
workers.
Every time top officials at the Department of Labor and
Occupational Safety and Health Administration have appeared
before Congress, they have cited declining injury, illness and
fatality numbers to demonstrate their effectiveness at
protecting America's working men and women.
When Assistant Secretary Foulke has testified before the
committee, whether on OSHA's failure to issue standards to
protect workers, OSHA's failure to address the fatal ``popcorn
lung'' disease, or OSHA's failure to mitigate combustible dust
hazards or OSHA's shortage of inspectors, he has cited record-
low injury and illness statistics.
Secretary Foulke has essentially told the committee that if
fewer workers are being injured on the job, the agency must be
doing something right. However, a growing amount of evidence
suggests that the workplace and injury statistics Secretary
Foulke cites are grossly inaccurate.
Today we will hear about the growing number of academic
studies that conclude that the Department of Labor is actually
counting and reporting as few as one-third of all workplace
illnesses, injuries and deaths.
Some of the undercounting can be blamed on the fact that
millions of public employees and self-employed workers are not
required to report injuries and illnesses to the Labor
Department. Some of it is the result of the difficulty in
counting occupational illnesses like cancer or asthma that may
appear years after workers' initial workplace exposure.
However, critics also correctly point to a more significant
reason why it is difficult to get accurate injury and illness
data: The nation's workplace injury and illness report card is
based upon a system of self-reporting by employers.
This flawed system gives employers an incentive to
underreport injuries. The fewer injuries and illnesses an
employer reports, the less likely it will be inspected by OSHA
and the more likely it will pay lower premiums for workers'
compensation.
There is also mounting evidence that a number of employers
are engaging in intimidation in order to keep workers from
reporting their own injuries and illnesses. A recent Charlotte
Observer investigation on the hazardous working conditions in
North Carolina's poultry industry revealed a shocking record of
worker abuse and exploitation, often leading to crippling
injuries and illnesses.
The Observer also uncovered concerted efforts to
discipline, intimidate and fire workers in retaliation for
reporting serious on-the-job injuries. The Observer found that
workers were forced to return to work immediately after having
surgery so that the company would not have to file for workers'
compensation.
I want to commend the Charlotte Observer for their amazing
work on this important story on revealing working conditions
that remain hidden to most Americans.
We learned about workers with shattered ankles, workers
whose hands went numb after thousands of repetitive motions,
and workers who suffered serious knife cuts while on the job.
But none of these injuries appeared on the poultry company's
accident or injury logs, as required by law.
We also read about the very same poultry processing plant
proudly claiming a perfect safety record--records that were
hard to believe if you know anything about the hazardous
working conditions.
Underreporting of on-the-job injuries and illnesses is not
a new problem, nor is it an isolated one. It happens in job
sites across different industries and throughout the entire
country.
As demonstrated by the extensive report released in this
committee today, it is a regular practice for the steelworkers
to avoid detection and therefore retaliation by management by
keeping their injured hands in their pockets. This is known as
the ``bloody pocket syndrome.'' A recent Transportation
Committee hearing also revealed similar patterns in the rail
industry.
And the threats are not just limited to workers. We will
hear testimony today that occupational physicians are often
pressured to improperly report and provide inappropriate
treatment to injured workers in order to keep the incidents off
of the OSHA log.
Although there is widespread agreement that workplace
injuries and illnesses are woefully underreported, OSHA refuses
to recognize that the problem exists. The agency stubbornly
refuses to perform thorough audits, which further calls into
question the accuracy of the statistics it relies on.
Today we will hear testimony from a long-time OSHA official
about the agency's failure to seriously address this problem.
Some will dismiss recordkeeping problems as insignificant
paperwork violations, but these infractions are anything but
insignificant. Without accurate injury and illness statistics,
employers and workers are unable to identify and address safety
and health hazards and to ensure that workers get appropriate
medical treatment.
We cannot properly evaluate the status of our nation's
workplace safety and health laws in this country if we do not
start with accurate information. We simply must not allow the
lack of information to permit hazardous working conditions to
go unaddressed, putting workers' limbs and lives at risk.
The purpose of today's hearing is to evaluate the extent
and the causes of this problem and to learn what we can do to
improve reporting in order to do more to protect workers'
health and safety.
I am grateful to all of our witnesses for taking the time
to join us today, and I look forward to your important
testimony.
At this point, I would like to recognize Congressman
McKeon, who is the senior Republican on the committee, for his
opening statement.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Chairman, Committee on
Education and Labor
Good morning. Welcome to today's hearing on the underreporting of
workplace injuries and illnesses.
The Occupational Safety and Health Act of 1970 requires the U.S.
Department of Labor to collect and compile accurate statistics on
occupational injuries, illnesses and fatalities in the United States.
Accurate injury and illness records help the Occupational Safety
and Health Administration better allocate its resources, accurately
target its inspections, and evaluate the success of its efforts to
improve the health and safety of American workers.
Every time top officials at the Department of Labor and
Occupational Safety and Health Administration have appeared before
Congress, they have cited declining injury, illness and fatality
numbers to demonstrate their effectiveness at protecting America's
working men and women.
When Assistant Secretary Foulke has testified before this
committee--whether on OSHA's failure to issue standards to protect
workers, OSHA's failure to address the fatal ``popcorn lung'' disease,
or OSHA's failure to mitigate combustible dust hazards or OSHA's
shortage of inspectors--he has cited record-low injury and illness
statistics.
Secretary Foulke has essentially told this committee that if fewer
workers are being injured on the job, then the agency must be doing
something right.
However, a growing amount of evidence suggests that the workplace
and injury statistics Secretary Foulke cites are grossly inaccurate.
Today we will hear about the growing number of academic studies that
conclude that the Department of Labor is actually counting and
reporting as few as one-third of all workplace illnesses, injuries, and
deaths.
Some of the undercounting can be blamed on the fact that millions
of public employees and self-employed workers are not required to
report injuries and illnesses to the Labor Department. Some of it
results from the difficulty in counting occupational illnesses like
cancer or asthma that may appear years after workers' initial workplace
exposure.
However, critics also correctly point to a more significant reason
why it is difficult to get accurate injury and illness data: The
nation's workplace injury and illness report card is based on a system
of self-reporting by employers.
This flawed system gives employers an incentive to underreport
injuries: The fewer injuries and illnesses an employer reports, the
less likely it will be inspected by OSHA and the more likely it will
pay lower premiums for workers compensation.
There is also mounting evidence that a number of employers are
engaging in intimidation in order to keep workers from reporting their
own injuries and illnesses.
A recent Charlotte Observer investigation on hazardous working
conditions in North Carolina's poultry industry revealed a shocking
record of worker abuse and exploitation, often leading to crippling
injuries and illnesses.
The Observer also uncovered concerted efforts to discipline,
intimidate, and fire workers in retaliation for reporting serious on-
the-job injuries.
The Observer found that workers were forced to return to work
immediately after having surgery so that the company would not have to
file for workers compensation.
I want to commend the Charlotte Observer for their amazing work on
this important story on revealing working conditions that remain hidden
to most Americans.
We learned about workers with shattered ankles, workers whose hands
went numb after thousands of repetitive motions, and workers who
suffered serious knife cuts while on the job. But none of these
injuries appeared on the poultry company's accident and injury logs, as
required by law.
We also read about the very same poultry processing plants proudly
claiming perfect safety records--records that are hard to believe if
you know anything about these hazardous working conditions.
Underreporting on-the-job injuries and illnesses is not a new
problem. Nor is it an isolated one: It happens in job sites across
different industries and throughout the entire country.
As demonstrated by the extensive report released by this committee
today, it is a regular practice for steelworkers to avoid detection and
therefore retaliation by management by keeping their injured hands in
their pockets.
This is known as ``bloody pocket syndrome.'' A recent
Transportation Committee hearing also revealed a similar pattern in the
rail industry.
And the threats are not just limited to workers. We will hear
testimony today that occupational physicians are often pressured to
improperly report and provide inappropriate treatment to injured
workers in order to keep incidents off of the OSHA log.
Although there is widespread agreement that workplace injuries and
illnesses are woefully underreported, OSHA refuses to recognize that a
problem exists.
The agency stubbornly refuses to perform thorough audits, which
further calls into question the accuracy of the statistics it relies
on. Today we will hear testimony from a longtime OSHA official about
the agency's failure to seriously address this problem.
Some will dismiss recordkeeping problems as insignificant paperwork
violations. But these infractions are anything but insignificant.
Without accurate injury and illness statistics, employers and
workers are unable to identify and address safety and health hazards
and to ensure that workers get appropriate medical treatment.
And we cannot properly evaluate the status of our nation's
workplace safety and health laws in this country if we do not start
with accurate information.
We simply must not allow a lack of information to permit hazardous
working conditions to go unaddressed, putting workers' limbs and lives
at risk.
The purpose of today's hearing is to evaluate the extent and causes
of this problem and to learn what we can do to improve reporting in
order to do more to protect workers' health and safety.
I am grateful to all of our witnesses for taking the time to join
us today. I look forward to your important testimony.
Thank you.
______
Mr. McKeon. Thank you, Chairman Miller. And good morning.
We are here today to examine how the Department of Labor
collects statistics on workplace injuries, illnesses and
fatalities.
Under OSHA's recordkeeping system standard, employers
record and report work-related injuries, illnesses and
fatalities. This data is then used to evaluate the
effectiveness of the agency's practice and to target industries
and companies with high evidence rates for future inspection.
I understand that today's hearing was triggered, in large
part, by a series of newspaper articles that were published
earlier this year in which it was alleged that a certain
business has not been properly or accurately reporting its
employees' injuries and illnesses to OSHA.
Such an allegation is troubling and certainly warrants
further investigation. But, Mr. Chairman, you know as well as
anyone that I hesitate, and I think we all hesitate, to draw
broad-based conclusions from examples that have not been fully
investigated.
For that reason, I hope today's hearing is approached as an
opportunity to listen and learn, rather than to seek evidence
that supports existing conclusions.
OSHA's recordkeeping standard is an important tool that
allows us to monitor workplace safety and target initiatives
that can reduce injury and illness. Because of its importance,
I appreciate the opportunity to look more closely at the data-
collection methods used for the recordkeeping standard. The
information gathered through this standard helps ensure
effective enforcement of workplace safety standards.
I also think we need to look more closely at the guidance
offered to employers about what to record, what to report and
when to do so. Employers are held responsible for compliance
with this standard, which is why it is important that they be
given clear guidance about their responsibilities.
I expect that the discussion today may turn to questions
about the accuracy of the data associated with the
recordkeeping standard. It is a valid concern, and that is why
I look forward to hearing from our witnesses with the Bureau of
Labor Statistics about the audit process in place to ensure the
integrity of the data reported and collected under this
standard.
Ultimately I think the greatest value we can draw from
today's hearing is a greater understanding of the mechanisms in
place to ensure the prompt and accurate reporting of relevant
workplace injury and illness data. I look forward to such a
discussion.
And I yield back the balance of my time.
[The statement of Mr. McKeon follows:]
Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican
Member, Committee on Education and Labor
Thank you Chairman Miller, and good morning. We're here today to
examine how the Department of Labor collects statistics on workplace
injuries, illnesses, and fatalities.
Under OSHA's recordkeeping standard, employers record and report
work-related injuries, illnesses, and fatalities. This data is then
used to evaluate the effectiveness of the agency's practices and to
target industries and companies with high incidence rates for future
inspection.
I understand that today's hearing was triggered in large part by a
series of newspaper articles that were published earlier this year, in
which it was alleged that a certain business has not been properly or
accurately reporting its employees' injuries and illnesses to OSHA.
Such an allegation is troubling, and certainly warrants further
investigation. But Mr. Chairman, you know as well as anyone that I
hesitate--and I think we all must hesitate--to draw broad-based
conclusions from examples that have not been fully investigated.
For that reason, I hope today's hearing is approached as an
opportunity to listen and learn, rather than to seek evidence that
supports existing conclusions.
OSHA's recordkeeping standard is an important tool that allows us
to monitor workplace safety and target initiatives that can reduce
injury and illness.
Because of its importance, I appreciate the opportunity to look
more closely at the data collection methods used for the recordkeeping
standard. The information gathered through this standard helps ensure
effective enforcement of workplace safety standards.
I also think we need to look more closely at the guidance offered
to employers about what to record, what to report, and when to do so.
Employers are held responsible for compliance with this standard, which
is why it's important that they be given clear guidance about their
responsibilities.
I expect that the discussion today may turn to questions about the
accuracy of the data associated with the recordkeeping standard. It's a
valid concern, and that's why I look forward to hearing from our
witness with the Bureau of Labor Statistics about the audit process in
place to ensure the integrity of the data reported and collected under
this standard.
Ultimately, I think the greatest value we can draw from today's
hearing is a greater understanding of the mechanisms in place to ensure
the prompt and accurate reporting of relevant workplace injury and
illness data. I look forward to such a discussion, and yield back the
balance of my time.
______
Chairman Miller. I thank the gentleman.
Again, let me welcome the witnesses to today's hearing. We
look forward to your testimony. And we certainly appreciate
that time that you are giving over to the committee inquiry.
Let me begin by introducing A.C. Span, Jr. He worked for 6
months at Bashas' Distribution Center, a food warehouse and
distribution center located in Chandler, Arizona. Originally
from Chicago, A.C. worked in home construction before moving to
Arizona. He is the father of an 18-year-old daughter. And he
worked as a baler at Bashas', and in doing that, he loaded and
unloaded trucks, sorted pallets, cleaned ice cream totes, and
flattened cardboard boxes. In January of 2008, he was fired
from Bashas'.
Dr. Robert McLellan is an immediate past president of the
American College of Occupational and Environmental Medicine. He
is a board-certified occupational medicine physician;
additional certification in family medicine. Dr. McLellan has
extensive experience as an occupational medical consultant to
business and a wide range of economic sectors, including health
care, manufacturing, nuclear energy and public safety.
Baruch Fellner is representing the U.S. Chamber of
Commerce. He is a partner in Gibson, Dunn & Crutcher in
Washington, D.C., practicing in the area of labor relations. He
has also worked in the Solicitor's Office at the Department of
Labor and in the Appellate Court Branch of the National Labor
Relations Board. Mr. Fellner received his B.A. from George
Washington University and a law degree from Harvard Law.
John W. Ruser has served as assistant commissioner for
safety, health and working conditions at the U.S. Bureau of
Labor Statistics since November 2006. Dr. Ruser is responsible
for the Census of Fatal Occupational Injuries, the Survey of
Occupational Injuries and Illness, and special surveys. Dr.
Ruser holds Ph.D. and M.A. degrees in economics from the
University of Chicago and a B.A. in economics from Princeton
University.
Dr. Kenneth Rosenman is a professor of medicine and chief
of the Division of Occupational and Environmental Medicine at
Michigan State University. Dr. Rosenman is board-certified in
internal medicine and occupational medicine, and he received
his medical degree from the New York Medical College in 1975.
He is a fellow at the American College of Epidemiology and the
American College of Preventative Medicine. He also has
published approximately 145 articles on occupational and
environmental disease.
Bob Whitmore is in charge of OSHA's injury and illness
recordkeeping activities in the Office of Statistical Analysis
since 1988 and was employed as an economist in the Bureau of
Labor Statistics from 1972 until 1990. He has been the
Department of Labor's expert witness on OSHA recordkeeping
litigation and a member of the OSHA's significant case team and
has personally reviewed all the egregious and significant
recordkeeping cases since late 1986. He obtained his B.S.
degree in economics at the University of Baltimore in 1972. And
he is speaking today on behalf of himself and not representing
OSHA.
As we informed the witnesses, because of the importance of
getting complete, full and truthful testimony, the witnesses in
an investigative hearing before the committee in Congress are
sworn in. And our witnesses will be sworn today.
So before we move to your testimony, if I could ask you to
please stand and raise your right hand.
[Witnesses Sworn.]
Let the record show that the witnesses answered in the
affirmative.
And thank you very much for that.
And now, Mr. Span, we will hear from you.
Under our system, a green light will go on when you begin
to testify, which gives you 5 minutes. And then 4 minutes into
your testimony, an orange light will go on and give you an idea
to start to wrap up, but we want you to complete your thoughts.
And then a red light will go on when your 5 minutes is up. But,
again, feel free to complete your sentences or your thoughts at
that point.
TESTIMONY OF A.C. SPAN, JR., FORMER EMPLOYEE, BASHAS'
DISTRIBUTION CENTER
Mr. Span. First of all, Mr. Chairman, I would like to thank
you and the committee for giving me the opportunity to be here
in Washington and testify at this hearing.
My name is A.C. Span. I recently moved to Arizona from
Chicago, Illinois. In doing so, I heard wonderful things about
the Bashas' Corporation, so I applied for a position there, and
thank God they gave me an opportunity to go to work. I was told
I would be part of the Bashas' family. I was also told that it
would be an open door.
Being an employee there, I was employed on the baler. That
is the department that shreds the paper and unloads the tractor
trailers. I was given 5 minutes of training on the heavy
equipment that I must operate on an 8-hour basis.
As a baler, I witnessed a lot of debris scattered around on
the docks as well as the plates, and it was about my concern
about me being a diabetic that, you know, I had to pay
attention to the things that was around me. Because I also
witnessed people getting run over, getting their fingers
smashed and picking them up, scared to report these accidents,
because of the fact of Bashas' policies, which Bashas' has a
policy of a point system, with 16 points and you immediately
walk out the door.
And also they have another policy with the injury. If you
get hurt on the job and you report it, you are going to light
duty, from making $19 to $20 an hour, your pay is dropped, you
know. So a lot of people that work there have been there for
years. They can't afford for their pay to drop to minimum
wages, considering the price of gas and everything else there
in Arizona.
As I started working, I witnessed a lot of things that need
to be changed there, you know. So me and some more people that
work with me decided to get a safety committee going. We tried
to approach the Bashas' Corporation many a time, you know. And
we had a petition. And every time that we went, the door was
actually closed in our face.
So we decided to call OSHA and have them to come in. And it
is sad that OSHA came in and they gave us the investigation
very poorly. Because, you know, when I drive a car and the
speed limit says 35 miles per hour and I am doing 40, I am
being punished for it. And OSHA did not--they wrote a report,
and they had Bashas' fix certain things, but it was sad that,
you know, there wasn't even a smack on the wrist.
And here it is, a plant that people are being hurt on a
daily basis, and they are scared to report it because of the
fact that Bashas' is punishing them for it, you know? So most
of the workers there do not, do not at all, report any injuries
because of the fact that the policy that the Bashas'
Corporation had set forth.
And I would like to take the time to--medical, you have to
wait 6 months before any medical is provided for you there. And
it is sad that the workers have to go through this, and they
are going through it today.
Very little training at all. You know, when you are hired
there, you are just out there. You are being thrown out there,
and this is the way you have to get the job done.
At the Bashas' Corporation, the order selectors, they take
the orders for 166 stores. You are put on a time limit to have
these pieces and have them ready within a certain length of
time, or you can be either suspended or fired. You are given
points for these things.
So with the lack of the training to operate this heavy
equipment, as well as the pressure that they put on you to pull
these orders, it is chaos.
And at the time that OSHA did come in, it is surprising and
alarming that the company will shut down their operations.
While OSHA was in the building, we were told not to get on any
heavy equipment, you know. And I am surprised that OSHA didn't
catch on to this as well, that the whole plant was just in
there sweeping, you know.
And it is sad that all this stuff is happening, and OSHA
was supposed to be there for us. We contacted OSHA, but we have
no response or anything of that nature. In terms of the safety,
you know, it is sad that people have to go to work and to look
over their shoulders or watch to make sure they don't step on
any nails or for a guy to get on a two-ton pallet jack and
drive with no training, you know, it is a very scary sight, you
know, even to imagine that this is happening. I never
experienced anything like this before.
And also, you know, to see my fellow employees get ran over
and have their toes amputated as well as their fingers smashed,
and they are just taking tape to tape their fingers back up
because they are scared to report these injuries, because of
the fact that you will get punished for them. And this
punishment goes toward the point system, and this punishment
also goes toward my pay scale getting cut.
And, you know, it is not right at all. And I am sitting
here to testify from my experience, what I have seen. And I
hope that we can make a difference and a big change.
[The statement of Mr. Span follows:]
Prepared Statement of A.C. Span, Former Employee, Bashas' Distribution
Center
Thank you Chairman Miller, Representative McKeon, and Members of
the Committee for holding this hearing and for the opportunity to
testify. My name is A.C. Span and it is indeed an honor to be here in
Washington for my first time and to testify today at this important
hearing. Less than a year ago, I moved to Arizona and after hearing
about what a great place it was to work, applied and accepted a job at
Bashas' Distribution Center in Chandler, Arizona. It was clear to me
almost instantly that there are serious safety and health problems at
that Center and I am here today to tell you about my experience working
for Bashas'.
Prior to moving to Arizona, I lived in Chicago, Illinois and worked
as a house builder. I was a proud member of Teamster Local 222. Then
last summer, I moved with my wife to Phoenix, Arizona. Given the good
things I had heard about the Arizona based grocery store chain--
Bashas', and how hard it was to get a job with them, I was pleased when
I was offered a job as a baler in the Distribution Center. I couldn't
wait to be ``part of the Bashas' family.'' I had only been on the job
for six months before I was terminated for advocating for improved
workplace safety and for forming a union, which I will talk about
later. I now work for the Association of Community Organizations for
Reform Now (ACORN), which is a grassroots organization of low- and
moderate-income people.
I started work as a baler on August 8th of last year. I joined
approximately 800 workers at the warehouse distribution center. The
Distribution Center distributes food and merchandise to more than 166
grocery stores primarily located throughout Arizona. Although I had
been well trained to be a house builder, I did not receive any formal
training to prepare me for the work I would do at the Center. I believe
I was partially hired because of my experience building houses. Yet, as
a baler, I was responsible for loading and unloading trucks going to
and coming from the stores, sorting pallets, cleaning the ice cream
totes and flattening and shredding cardboard boxes. This was much
different work with much different skills than building houses. This
work involved operating heavy equipment, lifting, pulling and pushing
crates and cleaning totes with chemicals and disinfectants.
Before I go into some specific details of injuries at the Center
and what is and isn't reported, it is important to give you some
background about the company. There are seven key factors--
First, new employees do not have any medical insurance until their
sixth month anniversary.
Second, new employees get very limited training when they start
work. I noticed early on that the lack of training and required speeds
to do the work created a very unsafe work environment. I, along with my
coworkers in the balers department, work on and with heavy equipment
without any real training. Most are given only about 10 minutes of
driving practice on the forklifts and pallet jacks through cones in a
clear and uncluttered area, not at all like real the real work area at
the Center, which has trash and pallets all over. The forklifts and
pallet jacks can weigh 5-10 tons each. When I worked there, much of
this equipment was in bad condition with brakes that didn't work
properly. There were dock plates that were bent or damaged and many of
the storage racks were loose and swayed. Plus, the ladders around the
balers were often broken and unsafe. The combination of all these
problems, most of which still exist, created an environment where
workers could and would get injured. Without proper training,
maintenance, repair and protective equipment and clothing, accidents
and injuries are just waiting to happen.
In addition, typically the warehouse floors are covered with nails,
broken straps, broken wood and broken bottles, which cause the floors
to be slippery and dangerous. There are protruding nails from broken
pallets and dust everywhere. Most workers wear sneakers which do not
protect us from injuries. We also do not have any eye protection, ear
plugs, gloves, etc. to prevent injuries from any of these common
hazards.
In another part of the Center, ``Order Selectors,'' drive forklifts
to collect orders for stores. They are given strict time limits to
finish an order and are expected to finish one complete order within
the time limit. They are penalized with points if they do not finish
the order in time. The selectors fly down the aisles jumping on and off
the lifts getting the orders together. I saw a man lose his toe when a
machine ran over his foot. People get run over all the time because of
the haste in filling orders. Workers frequently get hurts because of
the speed and the badly maintained forklifts. However, Bashas'
routinely blames the workers for causing their injuries.
Third, Bashas' has a point system that penalizes workers for
absences and tardiness by giving them points. While workers are not
supposed to get points for time lost for industrial injury, there are
many examples of workers who take time off for work related injuries
and then get points. Workers who get 16 points in a year are
terminated. Typically you are given two points per missed day. Workers
who don't maintain 100% of the expected standard for selecting orders
get points. So, it is easy for the points to add up. In my case,
receiving points for taking time off for a work related injury could
have been a potential violation of the Family and Medical Leave Act.
Fourth, if an employee's injury is severe enough that he or she
cannot return to the regular job, the worker is put on ``light duty.''
Although that sounds reasonable, the company actually drops your pay to
minimum wage when you are on light duty. So, if you normally make $19-
20 an hour, your pay is cut by more than a one third to minimum wage.
Few workers can afford that kind of pay cut, especially when they are
also faced with medical bills. This kind of cut is punishment for
getting injured on the job.
Fifth, Bashas' has a policy that workers who get injured or report
an injury have to be drug tested.
Sixth, workers are directed to go to the company doctor and not
their own personal doctor. The Bashas' doctors may send you back to
work, even if you are not physically ready to go back to work and
regardless of your medical condition. The Bashas' doctor also
determines if you need to go on light duty and when you can come off of
it.
Finally, the company holds monthly raffles. If your department has
not had any injuries reported for the month, the entire department is
eligible for the raffle. If one person reports an injury, the entire
department is ineligible. The prizes include coupons for dinner, Ipods,
gameboys, etc. Everyone loves winning and there is great peer pressure
to keep injuries quiet so you can participate in the raffle.
All these things create an atmosphere where workers do not want to
report injuries. I have actually seen workers limping around rather
than report an injury. Reporting illnesses or injuries can cause you to
be unpopular with your co-workers, get disciplinary points, have your
salary reduced and ultimately lose your job. Why take the chance? Most
workers don't want to and end up staying silent about injuries.
My injury occurred about three months into the job. One of my jobs
was to unload trucks filled with empty palettes and product returned
from stores. The trucks are usually quickly loaded with contents
shifting during the drive to the Center. This truck had been sitting on
the lot for awhile. When I lifted the back door of the trailer, a large
pile of dust came out and went into my eye since I did not have safety
glasses. My supervisor, who was standing next to me, advised me to go
and wash off my face and eye. I then returned to work. When I woke up
the following day, my eye was glued together and the size of a
baseball. Since I was already scheduled to have two days off, I went
straight to my doctor. I preferred to go to my doctor since I have
diabetes and high blood pressure and want to make sure that those
conditions are taken into consideration for any treatment. After being
examined, my doctor told me I had a contagious eye infection and took
me off work for an additional two days. He gave me medication for my
eye and a letter saying I should allow my eye to heal and not operate
heavy equipment. Because I had no medical insurance through Bashas', my
visit was an out-of-pocket expense for me.
Three days later I returned to work still putting medication in my
eye. I had called the company about five hours before I was supposed to
return to let them know that I had been injured. I was told to bring in
documentation but when I arrived with the letter, the plant manager
commented that my ``eye was still messed up.'' He started to make noise
about how I had not reported my injury but my supervisor who had been
there when I got injured told him he was a witness. This annoyed the
manager. I think he had wanted to make it clear that this had not been
a work injury but with the support of the supervisor, that was not
possible.
The manager then told me he would need to take points off for my
missed days. I said that this was a work related injury and that I had
a doctor's note so I shouldn't get points. I was told that it was the
company's rule to deduct points and that I would get two points for the
days off. I told him again I didn't think any points should be taken
off and he said that ``two points ain't going to hurt you.'' Workers
should not be penalized for taking time off to recover from a work
injury. I returned to work to clean out ice cream totes, stack pallets
with a forklift and run to the freezer--with my eye still swollen. My
injury was never covered under worker's compensation.
Besides my own injury, working at Bashas' gave me a first hand look
at workers in the Distribution Center and I have seen workers with
broken fingers and toes. One of my co-workers had a toe cut off and
passed out on the floor. We watched managers debate whether they should
actually call 911. I have seen countless workers injured by getting hit
by equipment. I have seen workers with broken limbs and with toes cut
off. I have watched them struggle between reporting the injury and just
working with it. I saw one worker actually tape his coworker's broken
finger so he could return to work. I have seen the great efforts of my
co-workers to hide injuries rather than report them. I have seen
workers come to work with the flu rather than face taking time off and
getting points.
This is horrible no matter where it occurs but I'd like to remind
you that this is happening in a food facility. We are moving and
lifting food that is heading to grocery stores and then being purchased
by consumers. Not reporting these injuries and illnesses and working
despite them, is bad for the worker and bad for the consumer.
Shortly after I started working at Bashas', I saw the serious
problems at the Center. Along with a couple dozen of my coworkers in
the baling department, we started talking about the problems and
decided the best way to improve workplace safety would be to form a
union. We did not let the company's anti-union attitude--an attitude
that resulted in 85 allegations of workers' rights violations--deter us
and we began to act like a union to address our safety concerns. We
drafted a petition that highlighted the unsafe conditions and how
fearful workers were to report injuries. We approached management three
times requesting specific hazards be corrected as well as for a joint
safety committee to be formed. We proposed that the committee be made
up of management representatives and hourly workers to address on a
regular and formal basis safety and health concerns that arose in the
warehouse.
We tried three times to meet as a group with a Bashas' management
team but the door was always closed in our face. Bashas' would only
agree to meet one-on-one and not as a group. With no luck with the
company, we eventually contacted the Arizona Division of the
Occupational Safety and Health Administration and filed a complaint.
Seventeen workers signed onto the complaint. An additional 70 workers
signed the original petition. Like the company, OSHA never contacted
any of the workers who filed the complaint. They did examine the
warehouse, found some violations and cited the company. They mainly
focused on the ventilation system in the battery room.
I think it is important to tell you my impressions about when OSHA
came for inspections. What was really interesting is that the company
always seemed to know when OSHA was coming in for inspections. Things
were quickly repaired, fixed, cleaned--hours before the OSHA
representatives arrived. Once we were all told not to get on any
forklift while they were there inspecting. We were told not to do
anything until they left. So we spent the day sweeping and cleaning. No
production was done that day. It made me wonder what OSHA was thinking
when they didn't see anyone actually working during the inspection but
the company was never questioned.
We also tried to designate workers who could represent us for the
OSHA inspections. We picked workers who worked in the Distribution
Center, making sure we had workers who could tell the OSHA inspectors
our side of the story and what was really happening at the Center. We
put their names on the complaint form but OSHA ignored the request to
speak to these workers. Instead, when OSHA made the inspections, they
only talked to workers on a list provided by the company. In the end,
while OSHA solved a few things, they did not fix everything and the
company was never fined.
Within two weeks of OSHA issuing the citations, the company
announced that they planned to make major changes in the baling
department by outsourcing the jobs. In the end, 29 of us lost our jobs
as balers. Some were transferred to other jobs but most of us lost our
jobs at Bashas'--simply for standing up for our rights. On the day I
was fired, I was simply told that the company did not need me anymore
and that there were no other jobs available to me at Bashas'.
We were called troublemakers and told we had bad attitudes. They
were cleaning house of those workers who were outspoken. The message
was clear--don't report, don't talk, just keep your mouth shut or else.
Our goal all along was to make the workplace safer--both in terms of
safety and health--but also to make the workers feel safe reporting
problems and injuries. We were just trying to exercise our
constitutional rights. All workers should have safe working conditions.
I was raised by my parents to speak my mind. If I am wrong, I'll
admit it. But, it is my God given right as well as my constitutional
right to protect myself and stand up when I see a problem. It is also
my right to work in a safe environment. That was not the case at
Bashas' and I stood up for myself and my co-workers. Even though I am
not there anymore, I know there are still problems. Yes, the company
fixed the ventilation system in the battery room, but there has been no
increased training; the point system still exists, workers are still
paid minimum wage on light duty, and workers are still rushed to get
orders completed. These are things that need to change--not only to
make the work safer but to provide workers with a safe environment to
come forward and report injuries. Bashas' may think this Center is
``state of the art,'' but I know what happens to the workers inside.
I believe major changes need to be made by Bashas' to correct the
serious safety and health problems that hurt workers everyday. My
former employer needs to do more to protect workers and allow them to
report injuries without repercussions. I think it is time for the
government to examine the problem with under-reporting and I am glad
you are holding this hearing today.
Thank you again for the opportunity to testify and tell you my
story. Bashas' says it is dedicated to serving Arizona families but I
know first hand that this commitment does not include their workers or
the workers' families. It is time that the company and the government
do what they can to truly serve and protect all Arizona families. I
urge you to use the power of your offices to help the workers by
protecting our safety and health at work. Again, thank you for your
time and I would be pleased to answer any questions that you may have.
______
Chairman Miller. Thank you.
Dr. McLellan?
TESTIMONY OF ROBERT MCLELLAN, M.D., IMMEDIATE PAST PRESIDENT,
AMERICAN CONFERENCE OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE
Dr. McLellan. Good morning, and thank you for this
opportunity. I am Robert McLellan, an occupational medicine
physician and the immediate past president of the American
College of Occupational and Environmental Medicine, known as
ACOEM.
I serve as the chief of the Section of Occupational and
Environmental Medicine at Dartmouth-Hitchcock Medical Center
and as associate professor of medicine and community and family
medicine at Dartmouth Medical School.
Founded in 1916, ACOEM represents more than 5,000
physicians and other health-care professionals and is the
nation's largest medical society dedicated to protecting and
promoting the health of workers.
ACOEM's interest in OSHA recordkeeping stems from our role
as physicians with a dual mission: We provide direct care to
workers in the clinic, and we serve as public health officers
of the employed population.
Over the last year, I had the opportunity to tour the
country to meet with occupational physicians working in a
variety of settings. During these visits, physicians reported
that some employers exerted pressure on them to alter treatment
and/or return-to-work statements in ways likely to minimize
OSHA recordability.
Based on the frequency of this report, I suggested that
ACOEM convene a special session on OSHA recordkeeping at
ACOEM's recent annual scientific meeting. My testimony today
represents the results of preliminary exploration of this issue
by our college.
The OSHA log has grown to serve many purposes beyond that
for which it was originally designed. For example, today, many
owners select contractors on the basis of the contractor's
rates for lost work days and total recordable. At its best,
this practice results in the intensive efforts to improve
safety. At its worst, however, the spotlight on the log
produces efforts to make the log look good, rather than placing
attention on reducing risks.
ACOEM members report that various incentive programs to
produce a ``good'' OSHA log have distracted safety programs
from the primary goal of prevention. When workers and managers
are promised valuable prizes to avoid recordable injuries, our
members have observed pressures to underreport. In brief, when
a single metric becomes the focus of safety efforts, it can
become distorted by a variety of forces.
ACOEM has not conducted its own systematic research on this
issue, but we find anecdotes of distorted reporting troubling,
indicating a process and a system in need of review because of
the potential for causing both medical harm and flawed
statistical results.
Let me give just a few examples.
We observe, first, that there is a wide variability in
employers' understanding and application of the recordkeeping
standard. Many employers make every effort to comply
assiduously to the letter of the standard. Others, particularly
smaller employers, find the rule inordinately complex and
confusing and complete the log incorrectly through ignorance of
the rules.
A number of our members complain that distinctions in the
standard between first aid and medical treatment are
nonsensical and drive bad medical practice.
Several members indicate that selected workers, employers
and insurance companies have tried to influence medical
treatment in ways that may result in harm to a worker or, in
some cases, excessive costs.
For example, certain employers have asked clinicians to
write ``Work is tolerated'' on the return-to-work form to avoid
reporting lost work days. A member reported that the employer
then expected the worker, with a fractured leg, to sit in a
wheelchair at a construction site.
One member relayed an instance where a safety team at a
site without an on-site medical office inappropriately
controlled access to health-care providers in the context of
plant incentive programs that rewarded the absence of
recordable injuries. She intervened when she learned that after
a worker was exposed to vinyl chloride, safety personnel had
applied a hazardous chemical, potash, to the worker's skin
since they had read that potash could be used to neutralize
environmental spills.
In view of these examples and many others detailed in our
written testimony, ACOEM's advocacy on OSHA recordkeeping is
quite straightforward.
Number one, physicians must always do the right thing for
the patient. Although health-care providers do not have a
regulatory obligation under the standard, they do have an
ethical obligation to correctly diagnose, report and treat
injuries.
Number two, we believe that OSHA must encourage a better
understanding of the requirements interpretations of the
recordkeeping standard.
Number three, it is time to consider updating the correct
OSHA recordkeeping standard and its enforcement to minimize
underreporting.
Number four, it is time for OSHA to consider undertaking a
special emphasis program to increase the number of medical
records reviewed as part of OSHA's Audit and Verification
Program of Occupational Injuries and Illness Records.
And, number five, ACOEM supports efforts to broaden the
suite of occupational health indicators used at a national,
state and facility level in order to improve the quality of the
data necessary to prevent work-related injuries and illnesses.
Our intention today is not to point fingers, but rather to
seek solutions that are based on what is right for the patient
and that are grounded in good science and best occupational
medicine practices.
Thank you.
[The statement of Dr. McLellan follows:]
Prepared Statement of Robert K. McLellan, M.D., MPH, FACOEM,
Representing the American College of Occupational and Environmental
Medicine
Good Morning. I am Robert McLellan, an occupational medicine
physician and the Immediate Past President of the American College of
Occupational and Environmental Medicine, known as ACOEM. I serve as the
Chief of the Section of Occupational and Environmental Medicine at
Dartmouth-Hitchcock Medical Center and as Associate Professor of
Medicine and Community and Family Medicine at Dartmouth Medical School.
ACOEM represents more than 5,000 physicians and other health care
professionals specializing in the field of occupational and
environmental medicine. Founded in 1916, ACOEM is the nation's largest
medical society dedicated to promoting the health of workers through
preventive medicine, clinical care, disability management, research,
and education.
ACOEM welcomes this opportunity to provide our organization's
perspective on OSHA recordkeeping. Our interest in this subject stems
from our role as physicians with a dual mission; we provide direct care
to workers in the clinic and we serve as public health officers for
employed populations. As clinicians, we have an obligation to provide
the best, evidence-based care to workers. As a specialty of preventive
medicine, we also have a responsibility to use epidemiological tools
such as the OSHA log to design population-based preventive
interventions.
In my position as President of ACOEM, I had the opportunity over
the last year to tour the country and visit with occupational
physicians and allied health providers working in a variety of
settings. A concern reported to me during these visits was that some
employers exerted pressure on occupational physicians to alter
treatment and/or return to work statements in ways likely to minimize
OSHA recordability. Based on the frequency of this report, I suggested
that ACOEM convene a special session on OSHA recordkeeping at ACOEM's
annual meeting known as the American Occupational Health Conference,
this year held in New York City, In addition to this session, ACOEM
recently established a forum on its website to gather additional
perspectives from our members on their experience with OSHA
recordkeeping. In the coming months, we look forward to participating
in a survey of our membership to be conducted by the Government
Accountability Office, at the request of Chairman Miller and
Representative Woolsey, and Senators Kennedy and Murray, in an
exploration of the issue of reporting of work-related injuries and
illnesses. We expect to publish a position paper in the upcoming
months, but not before our College has had the opportunity to more
fully explore options as to how best to further the goal of valid and
reliable recordkeeping that supports preventive health and evidence-
based medical care. My testimony today therefore represents the results
of preliminary exploration of this issue by our College.
From the public health perspective, the OSHA Log was created as a
tool to describe the burden of occupational injuries and illnesses on
society. This data drives occupational health and safety resources. It
is also used to target interventions to address industries and
processes that carry the greatest risk. When followed over time, the
log can help evaluate the effectiveness of these interventions.
However, the OSHA log can only support these functions to the extent
that it is valid and reliably maintained. Most importantly, society's
interest in preventing work-related injuries and illnesses is foiled
when our picture of the true burden of work-related injuries and
illnesses is distorted.
Limitations of the OSHA log in serving these basic public health
functions have long been recognized. Several peer-reviewed articles in
the scientific literature have concluded that for many reasons, the
annual BLS survey of employer logs results in substantial under-
reporting of the full extent of work-related injuries and particularly
illnesses (Azaroff, Levenstein, et al 2002, Boden and Ozonoff 2008,
Rosenman, Kalush et al, 2006). With reference to other data bases and
changes in the recordkeeping rules (Friedman and Forst 2007), some
researchers have questioned whether the apparent decline in injuries
and illnesses is a true reflection of reality. These conclusions do not
mean that most employers are not in good faith doing their best to
accurately comply with the recordkeeping rule. Rather, multiple factors
are at play.
The OSHA log was never designed to serve as a single, comprehensive
metric of occupational health and safety at either the national or
employer level. By prescription of the OSH Act itself, the
recordkeeping standard has always excluded first aid cases. As well,
several sectors of workers are excluded; a problem which is growing
with the burgeoning number of contingent workers, a workforce estimated
in a recent article in the Journal of the American Medical Association
as representing nearly a third of the American workforce (Cummings and
Kriess 2008). The OSH Act also did not supersede workers' compensation
law, which often defines compensable injuries and illnesses somewhat
differently than the OSHA recordkeeping standard. In fact, since the
turn of this century, the Council of State and Territorial
Epidemiologists has promoted the use of a suite of 19 different
occupational health data bases in an effort to capture a more valid
picture of work related injuries and illnesses (Council of State and
Territorial Epidemiologists 2008).
The OSHA log has grown to serve many purposes beyond that for which
it was designed. When a single metric becomes the focus of safety
efforts, it can become distorted by a wide variety of pressures. For
example, OSHA's preamble to the recordkeeping rule cites a stakeholder,
who commented that ``Today, many owners are selecting contractors on
the basis of the contractors' rates for lost work days and total
recordables.'' At its best, this concentration results in intensive
efforts to improve safety. At its worst, however, the spotlight on the
log produces efforts to make the log look good, rather than placing
attention on reducing risks that lead to injury and illness. ACOEM
members report that various incentive programs to produce a ``good''
OSHA log can distract safety programs from the primary goal of
prevention. When workers or managers are promised a valuable prize to
avoid recordable injuries, they may pressure each other to under-
report. One ACOEM member reported that a worker came directly from the
job to the clinic with a very recent, significant laceration. In
contrast to obvious appearances however, the worker reported that the
injury had occurred the night before at home and in passing stated that
to claim otherwise would risk that his fellow workers would lose a
steak dinner. In another case, the entire plant was told that if they
had a recordable injury, the whole workforce would lose its bonus. When
managers' bonuses are dependent on a ``clean'' log, they may make
efforts to reduce reporting, whether it be by discouraging reporting by
employees, shifting medical care costs to group health insurance or
inappropriately intruding on the doctor-patient relationship.
Although physicians and providers do not have a regulatory
obligation under the standard, we have an ethical obligation to
correctly diagnose, report, and treat injuries. The rule allows
business to use a physician of its choice in the final determination of
causation, treatment, and work restrictions. At its best, this
provision allows employers to select knowledgeable physicians. At its
worst, this provision can lead employers to select physicians not for
their competence, but for their reliability in declaring that an injury
is not work related.
ACOEM Members' Perspectives
ACOEM has not conducted its own systematic research. The following
comments represent perspectives and anecdotes collected from our
members.
Some ACOEM members have observed a wide variability in
employers' understanding and application of the recordkeeping standard.
Many employers make every effort to comply assiduously to
the letter of the standard. In these settings, reporting is encouraged
and the general rule is to ``treat the patient, not the log.'' The log
is used to stimulate interventions that improve safety. Unfortunately,
in some cases, this careful compliance can result in the industry being
targeted for OSHA inspection because of incidence and severity rates
that appear above comparable businesses.
Some employers, in the spirit of training, ask physicians
if they can make minor alterations to their treatment, if medical
outcomes are not compromised, to take advantage of regulatory
distinctions between first aid and medical treatment.
Some, particularly smaller employers, find the rule
inordinately complex and confusing, and complete the log incorrectly
through ignorance of the rules.
Some employers work closely with in-house or outsourced
physicians to coordinate administrative functions of recordkeeping with
the medical providers who best understand the circumstances of the
worker's health problem. In other cases, an employer's recordkeeper has
little contact with knowledgeable providers.
Some of our members point out that the OSHA log is a
lagging indicator of safety; no matter how accurate, it counts past
events. These members encourage employers with whom they work to use a
broad set of metrics to evaluate and promote the health and safety of a
workplace, such as first aid and near misses, workers compensation
data, and hazard assessments. Noting that any injury, no matter how
minor is an indicator of a hazard, several members would rather declare
all first aid incidents as ``recordable.'' They reason that efforts
should be devoted to prevention rather than arguing about recordkeeping
rules.
Some of our members complain that distinctions that the
standard make between first aid and medical treatment are nonsensical
and can drive bad medical practice.
For example, using a cotton swab to remove a foreign body
from the eye is considered first aid. Unfortunately, use of a swab may
damage the cornea. The appropriate tool for the same purpose is a
needle like tool, called an eye spud, used by a trained health care
provider. Use of this tool, however, is considered medical treatment.
The difference between a laceration of only a few
millimeters, for which a bandaid is sufficient, and a laceration of a
few centimeters needing sutures is luck, not safety.
Some members indicate that several parties including some
workers, employers, and insurance companies try to influence
occupational medical treatment in ways that may result in medical harm
to a worker or in other cases, excessive costs to employers. We do not
know how extensive this problem is, but anecdotes are common enough to
be a concern. Let me note parenthetically that it is clear some
employees may demand inappropriate time off or medical treatment and
that some physicians may comply with those requests, in this case
resulting in over-reporting rather than under-reporting. However, since
the focus of this hearing is on under-reporting, we will focus our
testimony on anecdotal evidence from ACOEM members illustrating how
some employers, supervisors or safety professionals act in ways that
are driven primarily for the purpose of minimizing OSHA recordability.
Some employers willfully misinterpret the ``routine
functions'' criteria of OSHA to define cases as not recordable. Some
employers have asked clinicians to write ``Work as tolerated'' on the
Return to Work form in order to manage the restrictions themselves and
avoid a paper trail of recordability, for example.
One member reported an instance where a safety team at a
site without an on-site medical office, inappropriately controlled
access to health care providers in the context of plant incentive
programs that rewarded the absence of recordable injuries. She
intervened when she learned that after a worker was exposed to vinyl
chloride, the safety team had applied a hazardous chemical (potash) to
the worker's skin since they had read that the chemical could be used
to neutralize environmental spills.
Some employers send supervisors to the clinic with the
expectation that they accompany the worker into the exam room to
contribute to the evaluation of an injured worker.
Some employers send messages to be attached to medical
charts directing the physician to opine that the injury was not work-
related.
Some employers ask occupational health professionals to
prescribe ``exercise'' instead of physical therapy or to employ
athletic trainers instead of therapists to minimize recordability.
Some employers have been known to question the clinician's
decision to sew up a wound or they have requested Steri-Strips (a type
of bandaid) in order to prevent recordability.
Occupational health professionals are asked to review
treatment by other clinicians to determine if the prescription was
``really necessary'' in an effort to avoid recordability, clearly in
violation of OSHA's own interpretations.
Some of our members report that employers have diverted
injured workers to other physicians in a community who are apparently
more willing to comply with an employer's directives to alter care to
minimize recordability.
Conclusions and Recommendations
Let me conclude by saying that we believe most physicians and
employers are trying to do the right thing when it comes to OSHA
recordkeeping. But we find anecdotal examples of distorted reporting
troubling, suggesting a process and a system in need of review because
of the potential for causing both medical harm and flawed statistical
results.
No single party is to blame for under-reporting: As often is the
case, it is a complicated mix of pressures that range from workplace
practices to health provider policies and government regulations. ACOEM
has developed strong relationships with multiple constituencies,
including workers, employers and regulators, and has partnered with
NIOSH to further the protection of the workforce. It is not our
intention to point fingers, but rather to seek solutions that are based
on doing what's right for the patient and that are grounded in good
science and best practices.
Our advocacy on this issue is quite straightforward:
Number one: Physicians must always do the right thing for
the patient. Although physicians and providers do not have a regulatory
obligation under the standard, they do have an ethical obligation to
correctly diagnose, report, and treat injuries. This obligation also
extends to avoiding unnecessary treatment and disability. These
principles are built into our Code of Ethics and adhering to them must
always remain as a key goal. This will be our overriding priority in
all of our discussions of the issue.
Number two: We believe that OSHA must encourage a better
understanding of the requirements contained in the recordkeeping
standard and the various interpretations and uses surrounding the
standard. Providing employers with electronic decision-making tools
that incorporate rule interpretations, for example, could reduce the
variability in recordkeeping.
Number three: It may be time to update the current OSHA
recordkeeping standard and its enforcement to minimize under-reporting.
Number four: OSHA might undertake a special emphasis
program to increase the number of medical records reviewed as part of
OSHA's Audit and Verification Program of Occupational Injury and
Illness Records (CPL 02-00-138).
Number five: ACOEM supports efforts to broaden the suite
of occupational health indicators used at a national, state, and
facility level in order to improve the quality of the data necessary to
prevent work related injuries and illnesses.
REFERENCES
Azaroff, L. S., C. Levenstein, et al. (2002). ``Occupational injury and
illness surveillance: conceptual filters explain
underreporting.'' American Journal of Public Health 92(9):
1421-1429.
Boden, L. I. and A. Ozonoff (2008). ``Capture-recapture estimates of
nonfatal workplace injuries and illnesses.'' Annals of
Epidemiology in press.
Council of State and Territorial Epidemiologists (2008). Introduction
and Guide to the Data Tables for Occupational Health
Indicators. Available at http://www.cste.org/dnn/
ProgramsandActivities/OccupationalHealth/
OccupationalHealthIndicators/tabid/85/Default.aspx
Cummings, K. J. and K. Kreiss (2008). ``Contingent workers and
contingent health: Risks of a modern economy.'' Journal of the
American Medical Association 299(4): 448-453.
Friedman, L. S. and L. Forst (2007). ``The impact of OSHA recordkeeping
regulation changes on occupational injury and illness trends in
the US: a time-series analysis.'' Occupational and
Environmental Medicine 64: 454-460.
Rosenman, K. D., A. Kalush, et al. (2006). ``How much work-related
injury and illness is missed by the current national
surveillance system?'' Journal of Occupational and
Environmental Medicine 48(4): 357-365.
______
Chairman Miller. Thank you very much.
Dr. Ruser?
TESTIMONY OF JOHN RUSER, ASSISTANT COMMISSIONER FOR SAFETY AND
HEALTH STATISTICS, BUREAU OF LABOR STATISTICS
Mr. Ruser. Thank you, Chairman Miller, Congressman McKeon
and members of the committee, for inviting me to talk about the
workplace injury and illness statistics produced by the U.S.
Bureau of Labor Statistics.
The BLS provides annual estimates of workplace injuries,
illnesses and fatalities from two separate programs. These are
the Census of Fatal Occupational Injuries and the Survey of
Occupational Injuries and Illnesses, often called SOII. It is
this survey that has come to be the focus of much of the
undercount allegations, so it will be the focus of my remarks
today.
The survey is a federal-state cooperative program that
estimates the number and rate of new non-fatal workplace
injuries and illnesses. The data are obtained from a sample of
employers who gather their information from OSHA logs and
supplementary materials they keep throughout the year.
Because the data come from OSHA logs, the injuries and
illnesses counted by our survey are OSHA-recordable cases only.
These cases may differ from those counted in other data
systems, such as workers' compensation.
An important advantage of the survey is that it provides
the most occupational injury and illness counts available for
the nation and consistently across states. This includes
estimates by state and industry that state policymakers use to
track their own injury and illness experience compared to
similar states.
Other surveillance systems do provide some estimates of
workplace injuries and illnesses. However, these other systems
tend to collect only a small amount of data or they are not
consistent across states.
Recently, some academic studies have asserted that our
survey undercounts the total number of workplace injuries and
illnesses. A review of this literature suggests that three
different types of undercount are asserted.
First, it is pointed out that the survey does not count
most long-latent occupational illnesses such as cancer. The BLS
has long acknowledged this point. Many work-related illnesses
take years to develop and may be difficult to attribute to a
specific workplace.
A system based on employer records, like our survey, does
not capture most of these illnesses. Instead, the overwhelming
majority of new reported illnesses in our survey are those that
relate more directly to the workplace.
The undercount literature also mentions that we do not
count occupational injuries and illnesses incurred by workers
outside of the survey's scope. That is, the survey does not
include all public-sector workers, the self-employed, workers
in households and on small farms.
To partially address this issue, we are expanding our
survey to include government workers. Starting with the 2008
survey, BLS will collect state and local government data for
all states. This will allow us to provide estimates for some
high-hazard public-sector occupations, such as police and
firefighters. In addition, BLS is exploring with OSHA ways to
collect data for federal government agencies.
It is more difficult to collect data for other groups of
workers. These workers, principally the self-employed, are not
covered by the Occupational Safety and Health Act and are not
required to record injuries and illnesses.
In addition, BLS samples establishments from a list of
those on state unemployment insurances rolls. The self-employed
are rarely on this list. BLS has held discussions with the
National Institute for Occupational Safety and Health, or
NIOSH, and with some other groups on ways to utilize other data
to estimate workplace injuries and illnesses for these non-
covered groups of workers.
The last undercount allegation is that our survey does not
count some worker injuries and illnesses that are within the
scope of the survey. These allegations come from academic
studies that match individual case data in the survey to data
in other surveillance systems, such as workers' compensation.
The studies typically find that the survey and the other data
systems each miss a substantial number of cases.
The BLS takes claims of potential underreporting seriously
and has begun a number of activities to understand and, if
necessary, address the issue.
First, in 2007, BLS conducted a quality-assurance survey
that indicated that the survey accurately captured the data
entered on employers' OSHA logs.
Second, BLS has instituted a program of research to examine
and extend the previous data matching work. The goal is to
learn if certain types of cases and respondents show greater
apparent undercounting and to determine what factors might
explain these findings.
The BLS is also undertaking a pilot program of employer
interviews to learn about injury reporting and illnesses on
OSHA logs and other data systems.
This is not an audit of employers' OSHA logs, which is an
activity outside of BLS's jurisdiction. I want to repeat that:
This is not an audit of employers' OSHA logs, which is outside
of the jurisdiction of the Bureau of Labor Statistics.
In addition, BLS has discussed with NIOSH the possibility
of conducting research in partnership.
BLS has already begun research with matched workers'
compensation and survey data for a single state. Some
preliminary findings suggest that a variety of factors many
explain apparent undercount results.
One explanation is that there are legitimate differences
between the types of cases that are included in different
systems. The academic undercount research previously mentioned
tries to account for these differences.
Another explanation is that some workers' compensation
cases for a particular year are entered into the workers' comp
databases long after the end of that year. In order to be
timely, our survey collects data soon after the end of the
calendar year, perhaps before some of these cases have been
recognized.
Finally, there are some methodological issues that might
magnify research estimates of the survey undercount. For
example, our survey collects data for establishments, while
workers' compensation data are reported by company. When a
company has multiple establishments, it is difficult to
determine in the workers' compensation data for which
establishment a particular case comes from. This makes matching
individual cases difficult. And when you fail to match cases in
these systems, it appear there is an undercount.
In summary, the BLS believes that a variety of factors may
account for the research showing differences between the cases
captured in the Survey of Occupational Injuries and Illnesses
and in other data systems. The BLS has instituted a program of
research to understand and explain these differences. Within
the constraints of its mission as a statistical agency, BLS
will continue to work to ensure that the survey accurately
measures within-scope workplace injuries and illnesses.
Thank you.
[The statement of Mr. Ruser follows:]
------
Chairman Miller. Thank you.
Mr. Fellner?
TESTIMONY OF BARUCH FELLNER, PARTNER, GIBSON, DUNN & CRUTCHER,
LLP, REPRESENTING THE U.S. CHAMBER OF COMMERCE
Mr. Fellner. Good morning, Chairman Miller, members of the
committee. My name is Baruch Fellner. I am an attorney with the
law firm of Gibson, Dunn & Crutcher here in Washington. And I
very much appreciate your invitation to participate in this
important hearing dealing with the extent of underreporting
under OSHA's complex recordkeeping requirements.
I am appearing this morning on behalf of the United States
Chamber of Commerce, the world's largest business federation. I
am also here in my personal capacity as an attorney who has
found himself on both sides, having been a participant in the
development of the law and policy of OSHA during his first
decade and then a frequent critic of OSHA thereafter.
I hope to draw on this balanced experience in attempting to
answer to the critical question that underlies this hearing,
and that is: Does the current recordkeeping system accurately
reflect employers' understanding of their OSHA recordkeeping
requirements?
Before turning to my prepared remarks, I think it would be
important to be directly responsive to the chairman's opening
statement, and specifically to one of the underpinnings of the
concerns that are expressed by this committee, namely that
there is an incentive on the part of employers to under-record,
because the fewer injuries, if I heard correctly this morning,
the fewer injuries that are recorded, the less likely employers
are to be inspected.
In response to the point made by the chairman this morning,
let me rely on the report of the AFL-CIO. The annual report on
fatalities in the workplace of the AFL-CIO points out that, as
a result of the number of inspectors, both state and federal,
the likelihood of employers to be inspected, the 7 million
workplaces in the United States to be inspected, is once in 100
years or so.
It seems to me that the incentive of underreporting in
order to make the likelihood to be somewhat longer than once in
100 years is a small incentive. And I would think that this
committee should look carefully before it jumps to the
conclusion that that incentive in any practical or real aspect
exists for underreporting.
Based upon 40 years of experience, I believe that the
steadily declining injury rates provided by OSHA and the Bureau
of Labor Statistics are and must be substantially reliable.
These statistics are the linchpin of OSHA's enforcement and
compliance policies and priorities.
And let me rely on the words of Richard Fairfax, OSHA's
director of enforcement under both Democrat and Republican
administrations, one of the most respected OSHA personnel. And
he said that inspectors search for underreporting, and the
Charlotte Observer said, ``But when we try to track it down, it
goes nowhere.''
OSHA uses at least two methods to try to track down
underreporting. First, it compares information supplied by
employers in high-hazard industries with what is on their OSHA
300 logs and then further compares those logs with medical
records.
And, second, under its site-specific targeting program, it
not only inspects employers with high injury incidence rates,
but also selects a statistical sample of employers with low
rates in order to find out whether or not they are cooking the
books. And they have concluded that the vast majority of
establishments are, in fact, maintaining accurate records.
Let me suggest that those who disagree with that statement
ignore the complex legal, factual and regulatory framework that
human resources personnel, on a daily basis, are asked to
implement. First, human resource personnel are supposed to
decide whether an injury has occurred; secondly, they are
supposed to decide whether or not the workplace is the
discernible cause of that industry.
Those determinations are clear when an employee, God
forbid, has an amputated finger as a result of an unguarded
machine or falls off an unguarded platform and breaks his arm.
Those decisions are far from clear, and the dispute erupts,
when the focus shifts to working with pain. And let there be no
mistake: We do not trivialize pain. Pain is real. But the
subjectivity of its symptoms and whether those symptoms
constitute pathoanatomic injury, as well as the difficulty of
ascertaining discernible causes, raise a number of distinct
challenges for any recordkeeper who aspires to perfect
accuracy.
And let me further suggest to the committee that the issues
are not only in the subjective area of pain, but they also
involve the more routine injury recordation questions. Any
recording scheme that has 46 sections and 200 pages of
frequently asked questions has got to be a regulation which is
difficult to implement.
And just to give you one example, how much Motrin, over-
the-counter Motrin, is prescription-oriented and requires
recordkeeping as opposed to non-prescription-oriented Motrin
and doesn't require recordkeeping? When is a soft splint used
versus a hard splint? A soft splint is not recordable. When is
oxygen used for purposes of treatment, which is recordable, or
prophylactically, when it is not recordable?
Put yourselves in the shoes of the staff that is trying to
make these decisions on a day-to-day basis. Innocent error is
unfortunate but inevitable.
Let me conclude with a modest observation. Employers are
doing a good and conscientious job. We can all agree that there
is clearly some underreporting, and OSHA must remain vigilant
to minimize it in order to maintain the integrity of its
enforcement and regulation programs. But the committee should
focus on the scope of the problem.
The title of this hearing declares in no uncertain terms
that we are dealing with a tragedy of deliberately hidden
injuries. Such a conclusion ignores the real efforts that
employers are making to accurately identify all work-related
injuries in a complex regulatory and medical environment.
This concludes my remarks. I would like my more extended
testimony to be submitted for the record. And I look forward to
your questions. Thank you.
[The statement of Mr. Fellner follows:]
Prepared Statement of Baruch Fellner, Esq., Gibson, Dunn, & Crutcher,
LLP, on Behalf of the U.S. Chamber of Commerce
Chairman Miller, Members of the Committee, my name is Baruch
Fellner, an attorney with the law firm of Gibson, Dunn & Crutcher, LLP.
I very much appreciate your invitation to participate in this important
hearing dealing with the extent of potential underreporting under
OSHA's complex recordkeeping requirements.
I am appearing in this hearing on behalf of the U.S. Chamber of
Commerce, the world's largest business federation, representing more
than three million businesses and organizations of every size, sector,
and region.
I serve on the Chamber's Labor Relations Committee and its OSHA
Subcommittee. I am also here in my personal capacity as an attorney who
has found himself on both sides, an observer and participant in the
development of OSHA law and policy during its first decade and a
frequent critic of it thereafter. I hope to draw on that balanced
experience in attempting to answer the critical question that underlies
this entire matter: does the current recordkeeping system accurately
reflect employer's understanding of their OSHA recordkeeping
requirements?
Some have suggested that the answer to that question is, ``no.''
Indeed, in the last several years, the charge of underreporting has
become something of a professional mantra. In perhaps the most
comprehensive of these studies, Azaroff, et al. have identified several
``filters'' in the current recordkeeping process at which
underreporting could occur, including possible motivations of both
workers and employers for suppression of information.\1\ Essentially,
the allegations are twofold: first, employers are deliberately
underreporting because of a perverse incentive structure that
encourages them to make their workplaces appear as safe as possible.
Second, employees are incentivized not to report injuries because they
fear stigma or retaliation.
I respectfully submit that both of these claims overstate the
extent of and motive for underreporting. Based upon almost 40 years of
experience, I believe that the steadily declining injury rates provided
by OSHA and the Bureau of Labor Statistics (``BLS'') are and must be
substantially reliable. These statistics are the lynchpin of OSHA
enforcement and compliance policies and priorities. That is precisely
why the Agency inspects workplaces not only with high injury rates, but
also those with low ones. Thus, as I will discuss in greater detail
below, the appropriate mechanisms for detection are already in place.
Many of the witnesses before this panel want OSHA to discover
underreporting that simply is not there. In the words of Richard
Fairfax, OSHA's Director of Enforcement under both Democrat and
Republican administrations, inspectors search for underreporting but
``[w]hen we try to track it down, it goes nowhere.'' \2\ My testimony
today discusses that search and why the numbers it yields are far more
reliable than critics claim.
A. OSHA's own audits establish that underreporting is minimal and
concentrated among very few workplaces
Let us be clear that no one is suggesting that employer candor
about injury rates should be taken for granted. To its credit, OSHA
recognizes that some may try to game the system by deliberately
suppressing the number of injuries actually occurring. That is why it
conducts an annual OSHA Data Initiative (ODI) analysis of its audits of
employer injury and illness recordkeeping. After compiling occupational
injury and illness data from around 80,000 establishments in high-
hazard industries, ODI ensures the accuracy of that data in order to
measure the Agency's performance in reducing workplace injuries and
illnesses. The audits first evaluate the internal consistency of
employer records by comparing the information in an employer's OSHA 300
Log with the information that employer submits to OSHA. The audits then
evaluate the reliability of the OSHA 300 Logs themselves by comparing
them with employees' medical records. If an employer is improperly
recording injury information or keeping it off the books entirely, OSHA
auditors would find it through this investigation. The only way that
injuries could escape OSHA's attention is if employees are seeing
private physicians without telling their employers, or, more likely, if
employees simply are not telling anyone at all. But regardless of the
potential for employee self-censorship, about which more is said below,
the ODI audit at the very least provides a means of detecting
underreporting by employers.
The results of the 2006 ODI audit analysis\3\ demonstrate a high
level of accuracy in employer records--roughly 95 percent of both total
recordable cases and DART (days away from work, restricted work
activity, and job transfers) injury/illness cases. Furthermore, a small
number of establishments account for a large part of that five percent.
Four establishments out of a total of 251 accounted for over 27 percent
of the underrecorded DART cases and almost 25 percent of the cases that
went entirely unrecorded on the OSHA 300 Logs. Overall, 92.43 percent
of the establishments audited were at or above a 95 percent accuracy
rate with respect to underrecording of total recordable cases. That the
vast majority of establishments are maintaining accurate records, with
the small degree of inaccuracy concentrated among a few employers,
demonstrates widespread compliance with OSHA recordkeeping.
In addition, OSHA has implemented a second check on the accuracy of
its recordkeeping system. Since 1999, OSHA has conducted Site-Specific
Targeting inspections (``SST'') for non-construction workplaces with 40
or more employees. Based on the data received from ODI, SST selects for
inspection individual workplaces with high rates of DART or DAFWII
(days away from work injury and illness). But lest anyone conclude that
this only encourages employers to ``cook the books,'' SST also selects
for comprehensive inspection a number of establishments reporting low
rates in traditionally high-rate industries. In 2008, for example,
approximately 175 of these low-rate establishments will be added to the
SST primary inspection list. Similarly, a random sample of
establishments that do not provide rate information in accordance with
the ODI survey will also be added to the primary inspection list.
Workplaces that fall into any of these categories--high rates, low
rates, or non-respondents--may be liable for any recordkeeping
violations discovered. This enforcement structure is specifically
designed to discourage deliberate underreporting.
The success of OSHA's enforcement system is evident in the numbers.
Of the 61 establishments audited for low rates in 2006, only eight were
cited for recordkeeping violations. Of these, only five were serious
enough to warrant a monetary penalty. In 2005, 15 out of 103
establishments were cited, only seven of which warranted a penalty.
None of these citations suggested a premeditated attempt to withhold
information. Instead, employers were cited for a lack of precision in
what was already recorded and not for ``hiding the ball'' by not
recording at all.
B. The recordkeeping decisions that employers must make are too complex
for any reasonable observer to expect perfect accuracy
1. Musculoskeletal disorders (``MSDs'')
Those who are attributing a more malevolent rationale to employers
must consider the complexity of the legal, factual and regulatory
framework that human resources personnel are asked to implement. First,
they must decide whether an injury has occurred. Then, they must also
determine whether the workplace is the ``discernable cause.'' \4\ Those
determinations are self-evident when a digit is amputated by an
unguarded machine or an arm is broken as a result of a fall from an
unguarded platform; no one at this hearing would seriously suggest that
such injuries are not being systematically recorded. However, the
recordkeeping controversy erupts when the focus shifts to working with
pain. Let there be no mistake--we do not trivialize pain. Pain is real.
But the subjectivity of its symptoms, whether those symptoms constitute
pathoanatomic injury, and the difficulty of ascertaining its
discernible causes, raise a number of distinct challenges for any
record keeper who aspires to perfect accuracy. These points were
salient when OSHA promulgated--and the Congress rejected--the
ergonomics regulation eight years ago, and they remain so today. Given
the increasingly clear value of and trend toward data driven medicine,
the decision on the recordability of MSDs in the absence of
demonstrable injury and in the absence of the workplace as a
discernable cause is by no means an easy one.
Furthermore, it appears that the attribution of cumulative pain to
work-related causes is a matter of generational, subjective
perception--the older you get, the smarter you get about coping with
the discomfort ancillary to work and non-work circumstances. Thus,
since the allegedly debilitating effects of physical activity build up
over time,\5\ one would expect that if serious underreporting of MSDs
exists, injuries of older employees would be disproportionately
represented. In fact, research has shown precisely the opposite. A
study of health care workers in the Veterans Administration found that
employees with a service of over five years were almost 40 percent less
likely to report injuries than their counterparts with less service, as
were care-givers over 50 years of age.\6\ This explanation accords
strongly with the findings of a study that compared British employees'
occupational attribution of repetitive arm strain injuries with
expected estimates for persons exposed to their particular workplace
risk factors.\7\ That study found that the ratio of cases that
employees subjectively deemed work-related to the objectively expected
attributable number was substantially higher for respondents below the
age of 50 than above 50. It estimated that this over-attribution ratio
was nearly twice as large (5.4 to 3.0) if the employee was part of the
younger cohort.\8\
In sum, these studies and much more data-driven medicine underscore
the complexities of the decisions that must be made every day by this
nation's OSHA record keepers. It is little wonder that OSHA gave up any
pretense of even defining an MSD in 2000, much less providing a
separate column for recording MSDs in its recordkeeping regulation. To
suggest a vast conspiracy to underreport injuries is to ignore the
complexities of ergonomic issues.
Dr. Fred Gerr of the University of Iowa, a major proponent of
ergonomic regulation and hardly an apologist for the business
community, succinctly summarized these difficulties in an editorial in
the Journal of Occupational and Environmental Medicine:
``It is not news that musculoskeletal disorders are common among
working age persons and that some considerable proportion of the burden
of these conditions is attributable to factors other than exposure to
risk factors in the work place. Given this fact, we are faced with the
larger question of when is arm pain (or other, more specific
musculoskeletal disorders) attributable to work? * * * [W]hen a
considerable proportion of the disease burden would still occur,
independent of occupational exposures, what method do we have to
attribute to work those musculoskeletal conditions that are truly work-
related and how do we ensure that is done accurately and uniformly
across industry and various worker characteristics?'' \9\
2. Other injuries
The recording of MSDs is not the only hard question human resource
personnel must answer in trying to assess whether an injury is
recordable. Even the more routine, day-to-day decisions, are difficult
given the complexity of the recordkeeping regulations. Any rule that
has 46 subsections and over 200 pages of frequently asked questions is
susceptible to innocent error in its implementation. For example, how
many milligrams of over-the-counter Motrin is prescription strength
(recordable as medical treatment) and non-prescription strength
(nonrecordable)? Did the employee have a soft splint on his wrist (non-
recordable) or a hard splint (recordable)? Was oxygen administered as a
treatment (recordable) or prophylactically (nonrecordable)?
Put yourselves in the shoes of the staff charged with making these
fine-toothed distinctions. Innocent error is unfortunate but
inevitable. The numbers show that while OSHA must continue to educate
employers to reduce unintended recordkeeping mistakes--and let us all
be perfectly candid about that concession--it is not faced with the
sinister conspiracy of employers hiding injuries that are recordable
under the law.
C. OSHA's Critics Rely on Dubious Assumptions
Much of the momentum leading up to this hearing resulted from the
publication of a study by Kenneth D. Rosenman, et al., in the Journal
of Occupational and Environmental Medicine (``the Michigan
Study'').\10\ In calculating the extent of underreporting, the Michigan
Study relied principally on a workers' compensation database, with an
average number of reports nearly fifteen times the size of the next
largest source (35,310 to 2,483). But workers' compensation claim rates
should not be a referendum on OSHA recordkeeping. First, workers'
compensation is a completely different statutory and regulatory regime
that bears no relationship to the definition of recordable injuries
under OSHA. Second, we should not necessarily assume that every payment
is the result of a meritorious claim. When faced with questionable
claims, many employers would simply rather not litigate what
constitutes an injury or what is work related and just let the
insurance company make the payout. Third, claim frequency itself is
falling, suggesting that even workers' compensation rates support the
conclusion that workplaces are becoming safer.\11\
Another oft-cited piece of evidence for underreporting is a
purportedly perverse incentive structure in which employers are
encouraged to hide actual injuries in order to avoid OSHA targeting
inspections. The reality is that the size of these incentives has been
drastically overblown. The information in OSHA 300 Logs does not create
liability for workers' compensation or any other insurance scheme since
it does not indicate whether the employer or worker was at fault, nor
does it indicate whether an OSHA standard was violated. Employers are
made explicitly aware of this on the Log coversheets.\12\ Moreover, we
must recall that a substantial proportion of purportedly underrecorded
cases are MSDs,\13\ which only rarely trigger enforcement activities.
No ergonomics regulation exists, and only the most egregious MSD
violations can be cited for a ``recognized hazard'' under the General
Duty Clause. Since January 2001, only 19 such citations have been
issued. Instead, OSHA has implemented non-mandatory guidelines for
employers. If failure to follow a guideline does not give rise to an
enforceable citation, employers have no incentive to deliberately
underreport MSDs.
What employers do have to worry about, however, is doctoring the
record. As discussed above, they are far more likely to be penalized
for excluding recordable MSDs from the OSHA 300 Logs than they are for
acknowledging the marginal increase in ergonomic risk.\14\ Even the
most calculating, profit-maximizing employer would recognize that there
is less potential liability associated with recording non-citable MSDs
than with an underreporting audit.
D. Conclusion
Employers are doing a good and conscientious job. This is a modest
point. I have resisted the more polemical response--that underreporting
is a myth. We can all agree that there is clearly some underreporting,
and OSHA must remain vigilant to minimize it in order to maintain the
integrity of its enforcement and regulation programs. However, the
Committee should focus its attention on the scope of the problem. The
title of this hearing declares in no uncertain terms that we are
dealing with a tragedy of deliberately hidden injuries. Such a
conclusion ignores the real efforts that employers are making to
accurately identify all work-related injuries in a complex regulatory
and medical environment. The question I posed at the outset--whether
the current recordkeeping system reflects the best understanding of
employers--should be met with a resounding yes.
This concludes my remarks and I would ask that my more extended
testimony be submitted for the record. I look forward to any further
questions you may have.
ENDNOTES
\1\ Azaroff et al., Occupational Injury and Illness Surveillance:
Conceptual Filters Explain Underreporting, 92 Am. J. Pub. Health 1421
(2002).
\2\ Kerry Hall, Amy Alexander, and Franco Ordonez, The Cruelest
Cuts: The Human Cost of Bringing Poultry to Your Table, Charlotte
Observer, at 1A (Feb. 10, 2008).
\3\ See OSHA Data Initiative Collection Quality Control, Analysis
of Audits on CY 2003 Employer Injury and Illness Recordkeeping: Final
Report, (2006).
\4\ Settlement Agreement: Occupational Injury and Illness Recording
and Reporting, 66 Fed. Reg. 66,944 (Dec. 27, 2001).
\5\ In the preamble to the Clinton administration's final
ergonomics rule, OSHA stated matter-offactly that ``persistent signs or
symptoms of MSDs will progress and become more severe and disabling if
they are not treated and the employee remains in the job unabated. * *
* [T]he pain usually increased if exposure to the ergonomic risk
factors continues.'' Ergonomics Program, 65 Fed. Reg. 68,262, 68,753
(Nov. 14, 2000).
\6\ Siddharthan et al., Under-reporting of Work-related
Musculoskeletal Disorders in the Veterans Administration, 19 Int'l J.
Health Care Quality Assurance. 463, 470 (2006).
\7\ Keith Palmer, et al., How Common is Repetitive Strain Injury?,
65 Occupational & Envtl. Med. 331 (2008) at 333.
\8\ Id.
\9\ Fred Gerr, Surveillance of Work-related Musculoskeletal
Disorders, 65 J. Occupational & Envtl. Med. 298, 299 (2008).
\10\ Kenneth D. Rosenman, et al., How Much Work-related Injury and
Illness is Missed by the Current National Surveillance System, 48 J.
Occupational & Evtl. Med. 357 (2006).
\11\ See National Academy of Social Insurance, Workers'
Compensation: Benefits, Coverage, and Costs 5 (2004); National Council
on Compensation Insurance, Inc., Workers Compensation Claim Frequency
Continues to Fall in 2006 (2007).
\12\ Available at http://www.osha.gov/recordkeeping/new-osha300
form1-1-04.pdf/.
\13\ See Azaroff et al., supra note 1.
\14\ The extent of that risk cannot be reduced to partisan
politics. In fact, OSHA has never been hesitant to issue such citations
for faulty recordkeeping. The average penalty for recordkeeping
violations between 1985 and 1987 was $8,589. Though the Reagan
administration was never considered especially pro-employee, that
figure dwarfs the Clinton administration's $1,734 average.
______
Chairman Miller. Thank you.
Dr. Rosenman?
TESTIMONY OF KENNETH ROSENMAN, M.D., PROFESSOR OF MEDICINE,
CHIEF, DIVISION OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE,
MICHIGAN STATE UNIVERSITY
Dr. Rosenman. Thank you for the opportunity to talk about
the system to keep track of occupational injuries and illnesses
in the United States. My name is Kenneth Rosenman. I am a
physician and epidemiologist who has studied and written about
surveillance systems for the last 25 years.
Recent newspaper articles have once again--and I really
want to emphasize ``once again''--highlighted shortcomings in
the nation's efforts to track work-related conditions.
A basic tenet for preventing and minimizing any disease is
to have a system that provides accurate information on both the
frequency and circumstances associated with those conditions.
Such a system is essential in order to determine how much
resources to allocate, how to target interventions, to evaluate
those interventions and, if necessary, to redirect the
interventions.
The current U.S. system to count occupational injuries and
illnesses in the United States does not provide this necessary
information.
In 1987, the National Academy of Sciences issued a report,
``Counting Injuries and Illnesses in the Workplace: Proposals
for a Better System.'' As a consequence of that report and the
deficiencies noted in the system, some changes were made.
The most pronounced change was how acute work-related
traumatic fatalities were counted--you know, somebody dying
because of a trench collapse, being electrocuted, falling off a
scaffold. As a consequence of these changes made in the
tracking system, the number of work-related deaths doubled in
the first year of the new system. So they doubled.
This 100 percent increase in the number of deaths was not
due to a sudden increase in the hazards of work but, rather, to
the implementation of a new and accurate system to count these
deaths.
No such changes were made in how work-related diseases,
such as lead poisoning, silicosis or work-related asthma, were
counted or how non-fatal injuries, such as amputations, burns,
lacerations or fractures, were counted.
In the last 20 years, I and others have researched and
published multiple studies that the current system provides an
inaccurate count of work-related illnesses and non-fatal
injuries. There is no disagreement in the medical literature
that an undercount exists and that this undercount is
significant.
Attached to my statement are 15 references from the medical
literature, and I want to quickly summarize the work of four
investigators.
First, Dr. Leigh from the University of California in
Davis, whose work shows that the current system misses 33 to 69
percent of all non-fatal work-related injuries. He calculated,
using the current system, that work-related injuries and
illnesses cost the United States $170 billion a year, which is
five times the cost of HIV-AIDS and three times the cost of
Alzheimer's disease.
Next, Drs. Boden and Ozanoff from Boston University, who
have shown in the six states of Minnesota, New Mexico, Oregon,
Washington, West Virginia and Wisconsin that the current system
misses up to 50 percent of non-fatal work-related injuries and
illnesses.
The next, Drs. Friedman and Frost from the University of
Illinois in Chicago, who have shown that reductions in the non-
fatal work-related injuries reported over the last decade are
not due to improvements in the workplace conditions but,
rather, reductions in OSHA's enforcement of recordkeeping rules
and changes by OSHA in the definition of work-related injuries.
They actually showed that 83 percent of the decrease in the
last decade were due to these record changes by OSHA and not
due to any reduction in actual injuries and illnesses. So that
even, one would hope, if the underreporting was consistent,
that one could at least look at trends, but their data says no.
My work with colleagues from Michigan State University that
show the current system misses 66 percent of work-related
injuries and illnesses in Michigan. And we found that this
undercount occurred across all different types of industries
and for both injuries and illnesses.
And in a separate study, we showed that the current system
missed one-third of amputations. And a similar study in
Minnesota also showed those results.
So, in summary, the current system to count work-related
injuries and illnesses has been repeatedly studied and shown by
researchers to have a large undercount. Expert panels that have
reviewed the current system have reached a similar conclusion.
The current system for non-fatal injuries and occupational
illnesses relies solely on employer reporting. And the previous
speaker spoke to some of the problems with employer reporting.
And our current system ignores the large number of
databases that are not dependent on employer coverage or
compliance with OSHA recordkeeping. These include hospital and
emergency room databases, Poison Control Center data, state
laboratory reporting regulations, state occupational disease
reporting laws, and workers' compensation.
What is needed is a comprehensive system for work-related
illnesses and non-fatal injuries that makes use of available
non-employer-based data systems, analogous to what now exists
for traumatic work-related fatalities.
Currently, the annual number of work-related illnesses and
injuries reported is based on a statistical extrapolation from
a relatively small sample of employers, about 150,000 to
200,000 out of our 7 million employers. Statistical
extrapolation from a much wider range of medical data systems
is essential if we are to have an accurate tracking system that
will provide the basic numbers needed for targeting the effort
to reduce these injuries and illnesses.
Thank you.
[The statement of Dr. Rosenman follows:]
Prepared Statement of Kenneth D. Rosenman, M.D., FACPM, FACE, Professor
of Medicine, Michigan State University College of Human Medicine
Thank you for the opportunity to talk about the system to keep
track of occupational injuries and illness in the United States. My
name is Kenneth Rosenman, I am a physician and epidemiologist who has
studied and written about surveillance of occupational injuries and
illnesses for the last 25 years. Recent newspaper articles have once
again, and I emphasize once again, highlighted shortcomings in the
nation's effort to track work-related conditions. A basic tenet for
preventing and minimizing any disease is to have a system that provides
accurate information on both the frequency and circumstances associated
with those conditions. Such a system is essential in order to determine
how much resources to allocate, to target interventions, to evaluate
these interventions and if necessary to redirect the interventions.
The current U.S. system to count occupational injuries and
illnesses does not provide the information necessary to make the above
decisions. In 1987 the National Academy of Sciences issued a report
titled ``Counting Injuries and Illnesses in the Workplace. Proposals
for a Better System''. As a consequence of that report and the
deficiencies noted in the system some changes were made. The most
pronounced change was how acute work-related traumatic fatalities (i.e.
being buried in a trench, being electrocuted and falling from a roof)
were tracked. As a consequence of the changes made in the tracking
system the number of work-related deaths doubled in the first year of
the new system. This 100% increase in the number of deaths was not due
to a sudden increase in the hazards of work but rather to the
implementation of a new and accurate system to count these deaths. No
such changes were made in how work-related diseases such as lead
poisoning, silicosis or work-related asthma were counted or how non-
fatal injuries such as amputations, burns, fractures or lacerations
were counted.
In the last 20 years, I and others have researched and published
multiple studies that the current system provides an inaccurate count
of work-related illness and non-fatal injuries. There is no
disagreement in the medical literature that an undercount exists and
that this undercount is significant. I have attached to my statement a
list of examples of articles from the medical literature that have
presented the results of research on the undercount. I will quickly
summarize four of the studies:
1) Dr. Leigh from the University of California in Davis whose work
shows that the current system misses 33 to 69% of all non-fatal work
related injuries. Based on 1992 dollars, he calculated that work-
related injuries and illnesses cost the U.S. 170 billion dollars a year
which was five times the cost of HIV/AIDS and three times the cost of
Alzheimer's disease
2) Drs. Boden and Ozanoff from Boston University who have shown in
the six states of Minnesota, New Mexico, Oregon, Washington, West
Virginia and Wisconsin that the current system misses up to 50% of
work-related injuries.
3) Drs. Friedman and Frost from the University of Illinois in
Chicago who have shown that the reductions in non-fatal work-related
injuries reported over the last decade are not due to improvement in
workplace conditions but rather reductions in OSHA's enforcement of
recordkeeping rules and changes by OSHA in the definitions of work-
related injuries.
4) My work with colleagues from Michigan State University that show
the current system misses 66% of the work-related injuries and
illnesses in Michigan. We found that this undercount occurred across
all different types of industries and for both injuries and illnesses.
In summary, the current system to count work-related injuries and
illnesses has been repeatedly studied and shown by researchers to have
a large undercount. Expert panels that have reviewed the current system
have reached a similar conclusion. The current system for nonfatal
injuries and occupational illnesses relies solely on employer reporting
and ignores the large number of data bases that are not dependent on
employer coverage or compliance with OSHA record keeping. These data
bases include hospital and emergency room data bases, poison control
center data, state laboratory reporting regulations, state occupational
disease reporting laws, and workers' compensation. What is needed is a
comprehensive system for work-related illnesses and non-fatal injuries
that makes use of available non-employer based data systems analogous
to what exists for acute traumatic work-related fatalities. Currently,
the annual number of work-related injuries and illnesses reported is
based on a statistical extrapolation from a relatively small sample of
employers. Statistical extrapolation from a much wider range of medical
data systems is essential if we are to have an accurate tracking system
that will provide the basic numbers needed for targeting the effort
needed to truly reduce workplace injuries and illnesses.
REFERENCES
Azaroff LS, Levenstein C, Wegman DH. Occupational Injury and Illness
Surveillance: Conceptual Filters Explain Underreporting.
American Journal Public Health 2002; 92:1421-1429.
Boden LI, Ozonoff A. Capture-Recapture Estimates of Nonfatal Workplace
Injuries and Illnesses. Annals of Epidemiology 2008; 18: 500--
506.
Boyle D, Parker D, Larson C, Pessoa-Brand AOL. Nature, Incidence and
Cause of Work-Related Amputations in Minnesota. American
Journal of Industrial Medicine 2000; 35:542-550.
Islam SS, Edla SR, Mujuru P, Doyle EJ, Ducatman AM. Risk Factors for
Physical Assault State-Managed Workers' Compensation
Experience. American Journal Preventive Medicine 2003; 25: 31-
37.
Landrigan PH, Baker DB. The Recognition and Control of Occupational
Disease. Journal of the American Medical Association 1991; 266:
676-680.
Leigh JP, Markowitz SB, Fahs M, Shin C and Landrigan PJ. Occupational
Injury and Illnesses in the United States. Estimates of Costs,
Morbidity and Mortality. Archives of Internal Medicine 1997;
157: 1557-1568.
Leigh JP, Marcin JP, Miller TR. An Estimate of the US Government's
Undercount of Non Fatal Occupational Injuries. Journal of
Occupational and Environmental Medicine 2004; 46: 10-18.
Nelson NA, Park RM, Silverstein MA, Mirer FE. Cumulative Trauma
Disorders of Hand and Wrist in the Auto Industry. American
Journal of Public Health 1992; 82: 1550-1552.
Park RM, Nelson NA, Silverstein MA. Use of Medical Insurance Claims for
the Surveillance of Occupational Disease: An Analysis of
Cumulative Trauma in the Auto Industry. Journal of Occupational
Medicine 1992; 34: 731-737.
Pransky G, Snyder T, Dembe A, Himmelstein J. Under-Reporting of Work-
Related Disorders in the Workplace: A Case Study and Review of
the Literature. Ergonomics 1999; 42: 171-182.
Roscoe RJ, Ball W, Curran JJ et al. Adult Blood Lead Epidemiology and
Surveillance--United States, 1998-2001. Morbidity Mortality
Weekly Report 2002; 51(SS-11): 1-10.
Rosenman KD, Kalush A, Reilly MJ, Gardiner JC, Reeves M, Luo Z. How
Much Work-Related Injury and Illness is Missed by the Current
National Surveillance System? Journal of Occupational and
Environmental Medicine; 2006 49: 357-365.
Rosenman KD, Reilly MJ, Henneberger PK. Estimating the Total Number of
Newly-Recognized Silicosis Cases in the United States. American
Journal of Industrial Medicine 2003; 44: 141-147.
Stanbury M, Reilly MJ, Rosenman KD. Work-Related Amputations in
Michigan, 1997. American Journal of Industrial Medicine 2003;
44: 359-367.
Windau J, Rosenman KD, Anderson H, Hanrahan L, Rudolph L, Stanbury M,
Stark A. The Identification of Occupational Lung Disease from
Hospital Discharge Data. Journal of Occupational Medicine 1991;
33: 1061-1066.
______
Chairman Miller. Thank you very much.
Mr. Whitmore?
TESTIMONY OF BOB WHITMORE, FORMER CHIEF, OSHA DIVISION OF
RECORDKEEPING, U.S. DEPARTMENT OF LABOR
Mr. Whitmore. Yes, before I get going, I would just like to
say how proud I am to see so many members here today. And I
want to say how much I appreciate your attendance and
involvement.
Chairman Miller, Ranking Member McKeon and other dedicated
committee members, my name is Bob Whitmore. I am a Vietnam
veteran with an additional 36 years of government service with
the U.S. Department of Labor.
I have directed the national OSHA Injury and Illness
Recordkeeping system since 1988, and am the Department of
Labor's expert witness for recordkeeping litigation.
I have been subpoenaed to testify today and am accompanied
by my counsel, Mr. Robert Seldon of Robert C. Seldon and
Associates.
On July 17th of last year, my OSHA director, Keith Goddard,
placed me on paid administrative leave in a non-duty status 11
months ago. Therefore, at the outset, I want to make it very
clear that I am here today representing myself as a concerned
citizen, one with over 20 years of experience directly related
to the subject of today's hearing. I am not here representing
OSHA or the Department of Labor.
I contend that the current OSHA injury and illness
information is inaccurate, due in part to wide scale
underreporting by employers and OSHA's willingness to accept
these falsified numbers.
There are many reasons why OSHA would accept these numbers,
but one important institutional factor has dramatically
affected the agency since 1992, regardless of the political
party: Steady annual declines in the number of workplace
injuries and illnesses make it appear that OSHA is fulfilling
its mission.
In 1992, Congress passed GPRA. That holds OSHA accountable.
And we are going to be judged by where these numbers go, thanks
to GPRA.
All of us want to see a reduction in the number of
workplace injuries and illnesses. However, this reduction must
be the result of fewer injuries and illnesses actually
occurring, and not the result of falsified reporting. It is
impossible to evaluate the effectiveness of any OSHA program if
the data aren't accurate. Inaccurate data also make it harder
to know how to protect American workers from real hazards.
To understand how we got to this point, it is critically
important to look into history at the OSHA recordkeeping
system. That history can be broken into three segments.
What I refer to as the ``Taxi Fare Era'' began with the
start of the recordkeeping system in 1972 and continued through
mid-1986. While citations for recordkeeping topped the list of
the most cited OSHA standard or regulation during this period,
the fines in these cases were usually $100. Many of us refer to
those fines as corporate taxi fare.
From April 1986 to 1992, we entered what I term the
``Egregious Era.'' In April of 1986, under the Reagan
administration, OSHA issued its first-ever million-dollar fine
to Union Carbide in West Virginia for inaccurate recordkeeping.
During this period, I reviewed over 40 cases in which we
applied the newly developed instance-by-instance penalty
policy, allowing us to cite and fine the company for each
violation of recordkeeping rules.
I now want to make the second most important point in my
testimony. After we began vigorously enforcing OSHA's
recordkeeping rules in the Reagan administration, injury and
illnesses went up from 1985 through 1992. I believe Dr. Ruser
wrote an article in 1988 and 1991, with Robert Smith, that
addressed that very fact.
Okay, why? Employers may have many incentives not to record
injuries and illnesses accurately. For example, many plant and
corporate managers, physicians and supervisors receive bonuses
based on their OSHA recordable rates.
So when you enforce the recordkeeping rules, employers who
will be more careful to record all injuries and illnesses in
rates will go up. The reported national injury and illness
rates rose during this period, and the leading occupational
illness collected in the system went from contact dermatitis to
cumulative trauma disorders.
Does this mean workplaces are becoming more unsafe? No. It
just means that we have had a more accurate picture of what was
going on, because the employers were actually reporting
injuries and illnesses. If injury and illness rates go up when
you enforce recordkeeping rules, if you don't enforce the
rules, will reported rates go down? The answer is yes.
And this is the most important point of my oral testimony.
Not enforcing OSHA recordkeeping rules mean many employers will
not record injuries and illnesses affecting their workers. Do
falling reported rates mean workplaces are actually safer and
healthier? No. Estimates about how many injuries and illnesses
go unreported range from 30 to 60 percent.
I believe the final period, from 1992 to the present,
demonstrate that when you don't enforce recordkeeping, reported
injury and illness rates will fall. I call this period the
``Report Card Era.''
Around 1992, Congress passed GPRA in an attempt to make
agencies quantify their performance with objective findings.
For the very first time, GPRA made OSHA directly accountable
for the rise and fall of the injury and illness numbers.
Chairman Miller. Mr. Whitmore, I am going to ask if you can
wrap it up, please. Thank you.
Mr. Whitmore. Yes, sir.
It doesn't take an expert to question these data when one
looks at just a few examples. A steel plant in Kentucky
reported no cases on their log for 2005--no cases, a steel
plant. Two other steel plants in Ohio and one in Pennsylvania
had recordable case rates below one, total case rates below
one. Another steel plant in North Carolina and two poultry
plants in Iowa reported days-away rates of zero. And a large
poultry processor in North Carolina had a DART rate of 1.1.
In conclusion----
[The statement of Mr. Whitmore follows:]
Prepared Statement of Bob Whitmore, Former Chief, OSHA Division of
Recordkeeping, U.S. Department of Labor
Chairman Miller, Ranking Member McKeon and other dedicated
Committee members. My name is Bob Whitmore. I am a Vietnam veteran with
an additional 36 years of government service at the US Department of
Labor. I have directed the national OSHA Injury and Illness
Recordkeeping system since 1988, and am the Department of Labor's
expert witness for recordkeeping litigation. I have been subpoenaed to
testify today and am accompanied by my counsel, Mr. Robert C. Seldon,
of Robert C. Seldon and Associates. Mr. Seldon is well known for
representing employees who speak out about abuses in the public and
corporate sectors, and whom I believe has prevented OSHA from firing
me. On July 17th of last year my OSHA Director, Keith Goddard, placed
me on paid administrative leave in a non-duty status.
Therefore, at the outset I want to make it very clear that I am
here today representing myself as a concerned citizen; a concerned
citizen with over 20 years of work experience directly related to the
subject of today's Committee hearing. I am not here representing OSHA
or the Department of Labor.
I have been an outspoken critic regarding the inaccuracy of OSHA's
Injury and Illness Recordkeeping since 1985. Several years ago, I
assisted the Oakland Tribune in its 2005 coverage of the fraudulent
records kept by the joint venture KFM during the construction of the
San Francisco-Oakland Bay Bridge East Span, and the subsequent
California State Auditor investigation. More recently, I was involved
with the Charlotte Observer's six-day series, ``The Cruelest Cuts,''
which was published this past February. The graphic and disturbing
pictures I have in front of me come from that coverage. That private
investigation uncovered horrendous working conditions and fraudulent
records at one of the nation's largest poultry producers, the House of
Raeford Farms, with plants in both North and South Carolina.
I contend that the current OSHA Injury and Illness information is
inaccurate, due in part to wide scale underreporting by employers and
OSHA's willingness to accept these falsified numbers. There are many
reasons why OSHA would accept these numbers, but one important
institutional factor has dramatically affected the Agency since 1992,
regardless of the political party in power: steady annual declines in
the number of workplace injuries and illnesses makes it appear that
OSHA is fulfilling its mission.
All of us want to see a reduction in the numbers of workplace
injuries and illnesses. However, this reduction must be the result of
fewer injuries and illnesses actually occurring, and not the result of
falsified reporting. Obviously, it is impossible to evaluate the
effectiveness of any OSHA program in the results aren't accurate.
To understand how we got to this point in time it is important to
look at the history of the OSHA Recordkeeping system. That history can
be broken into 3 segments.
What I refer to as the ``TAXI FARE ERA'' began with the start of
recordkeeping in 1972 and continued through mid 1986. While citations
for recordkeeping topped the list of the most cited OSHA standard or
regulation during this period, the fines in these cases was usually
$100. (Note: $100 in 1972 = $518 in 2008) Many of us referred to these
fines as ``Corporate Taxi Fare.''
From April 1986 to 1992 we entered what I term the ``Egregious
Era.'' In April of 1986, under the Regan administration, OSHA issued
its first ever million-dollar fine to Union Carbide in West Virginia.
The $1.3 million dollar fine was for inaccurate recordkeeping. During
this period I reviewed over 40 cases in which we applied the newly
developed ``instance-by-instance'' penalty policy called the Egregious
Penalty. One only has to look at the injury/illness rates from 1985
through 1992 in order to see the impact of this era. In fact I believe
that in 1988 and 1991 Dr. Ruser and Robert Smith wrote about this
impact. The national injury and illness rates rose during this period
and the leading occupational illness collected in the system went from
contact dermatitis to repeated trauma disorders.
I call the period from 1992 up to the present the ``Report Card
Era.'' Around 1992 Congress passed the Government Performance Results
Act (GPRA), in an attempt to make Agencies quantify their performance
with objective findings. For the very first time, GPRA made OSHA
directly accountable for the rise and fall of the injury and illness
numbers. This information became the ``Report Card'' of success or
failure for OSHA. Obviously, the Congress was looking for real numbers.
Regrettably, the new OSHA of the nineties and beyond responded to the
complaints from large employers and their representatives that the
Agency was too zealous with ``paperwork enforcement''. OSHA ceased
virtually any meaningful recordkeeping enforcement actions after 1991.
Unfortunately, rather than aggressively pursuing programs to try and
insure accurate numbers, OSHA's leadership turned its backs on such
pursuits. Sadly, OSHA's primary mission--trying to insure worker
safety--was lost in their attempt to obtain and publicize a better
report card. Until recently Congress didn't seem to care either.
Like everything in life there seems to be good news and bad news.
The good news was that in 1995 OSHA began collecting the injury and
illness records directly form approximately 85,000 establishments
nationwide, called the annual OSHA Data Initiative or ODI. For the
first time ever, this program gave OSHA the injury and illness data for
specific establishments, rather than overall industry information. OSHA
could finally focus its attention on the employers having the highest
injury rates and so it then created the Site Specific Targeting System
(SST). Unfortunately except for one year since 1995 OSHA has decided
not to collect information from employers in the Construction industry,
one of our deadliest sectors.
The bad news was that employers were reporting these rates to OSHA
and history had already warned us of such perils. In the early 1980's
OSHA instituted a ``Records Check'' policy, in which Compliance
Officers calculated the ``lost-time'' rate from the OSHA Log and
immediately vacated the premises if the employer's rate was below the
national average rate (around 4.5 at that time). During the ``Egregious
Era'' everyone came to realize the ridiculous nature of the Records
Check Policy and it was eliminated.
The SST recently announced for 2008 will include establishments
with DART rates, formerly called lost-workday rates, of 11.0 (3,800
establishments) and above on the primary targeting lists and 7.0 and
above on the secondary targeting lists. Please realize that these lists
are for potential inspections, and other inspections, including
fatality, complaint, National and Local emphasis programs often
preclude an Area Office from completing even a sample of the SST
primary targeting list. Bottom line, if you report a DART rate below
7.0 you aren't even on OSHAs radar for the potential of a planned
inspection. Employers have always had incentives not to report all
injuries and illnesses: many plant and corporate managers, physicians,
and supervisors receive bonuses based on their OSHA recordable rates.
While well intentioned originally, the SST as it is currently
administered provides them with another one.
It doesn't take an expert to question this data when one looks at
just a few examples from 2005:
1) A steel plant in Kentucky reported no, or 0%, cases on their
log.
2) Two other steel plants in Ohio and one in Pennsylvania had total
recordable case rates, TCR, below 1.
3) Another steel plant in North Carolina and two poultry plants in
Iowa reported ``Days Away/Restricted/Transferred'' (DART) rates of 0,
and a large poultry processor in North Carolina reported a DART rate of
1.2.
To try and put these numbers in context, the 2005 data for all
private sector establishments classified as General Merchandise Stores
(code 452) under retail trade reported the following:
Total Case Rate--6.7
DART rate--3.9
So what can this Committee do to ensure that the OSHA numbers are
real?
1) Direct OSHA to put its entire employer reported data since 1995
on its website so that no one would be forced, as has been the
practice, to submit a FOIA request for this releasable information.
This would include the data from the OSHA ODI and OMB Records Audit
programs.
2) Direct OSHA to reinstitute firm, fair & consistent enforcement
of the recordkeeping regulations by establishing an ongoing National
Emphasis Program that will begin to address the problem of intentional
underreporting of workplace injuries and illnesses.
3) Direct OSHA to create an independent Recordkeeping Inspection
Support Office that would contain a national Office ``SWAT Team'' for
potentially egregious cases so that the Field Compliance staff would be
able to proceed with their other inspections.
4) Direct OSHA to establish an SST program that does not ignore
employers who send in highly questionable, if not fraudulent,
information.
5) Finally, but probably the single most effective way to quickly
improve the data, direct OSHA to issue a requirement that would make
Corporate Safety Directors certify that they have made meaningful and
effective efforts to insure the accuracy of the OSHA records throughout
their corporation. With Sarbanes/Oxley in effect, large employers will
most likely vigorously oppose this idea.
In conclusion, I'd like to share with you the response of Ms.
Cherie Berry, Labor Commissioner for North Carolina OSHA, to a question
posed by the Charlotte Observer, which was printed in its ``Cruelest
Cuts'' series I mentioned earlier:
Q. ``Will your department take any additional steps to ensure that
company injury logs reflect reality?''
``Well, I find it offensive that it seems to me you're suggesting
that not keeping the proper paperwork is commonplace in our business
community. I just don't find that. * * * We're going to keep doing what
we're doing because it's working.''
While Ms Berry might be offended, I personally find her response,
as well as similar reactions throughout OSHA's leadership, outrageous.
Today, and every day this year an average 16 pieces of ``paperwork''
will be completed for working men and women in America, their death
certificates. It's time for the leadership of my Agency to show
Chairman Miller's ``sense of urgency'' regarding the safety and health
of America's workers. Unfortunately, tomorrow will be too little and
too late for an additional 16 grieving American families.
I personally want to apologize to those 16 families, as well as to
the family of Bobby Glover, pictured here after his death at the House
of Raeford Farms.
Thank you for giving me the opportunity to appear before this
Committee. I look forward to your questions.
______
Chairman Miller. Mr. Whitmore, I am going to ask you to
stop there. We have a vote on the floor, and I want to see if
we can get to at least partial questions at this time. So your
written statement----
Mr. Whitmore. Can I----
Chairman Miller. [continuing]. Is in the record in its
entirety. I am sorry. I am just going to have to do this----
Mr. Whitmore. Yes, sir.
Chairman Miller. [continuing]. Because we are going to
start to lose members.
Dr. Ruser, let me ask you a question. In your statement,
you indicate that you are engaging in conversations about BLS
looking at federal and local workers. Is that correct?
Mr. Ruser. Yes, sir, that is correct. We have already
expanded the survey to include state and local government
workers in all states.
Chairman Miller. Any discussion of expanding that to part-
time employees, which are a rapidly growing sector of the
economy in all employment areas? You know, it is not just to
retail now; it is all across the economy.
Mr. Ruser. Any worker who has an employment relationship
with an employer is covered by our survey. So we already
capture many part-time workers, sir. I think maybe you are
referring to the self-employed. And, at this point in time, we
have no----
Chairman Miller. No, I am raising the question of whether
or not, in fact, part-time employees are accurately counted
within----
Mr. Ruser. Yes, we count part-time employees.
Chairman Miller [continuing]. You survey.
Mr. Ruser. Yes, we do.
Chairman Miller. Does OSHA?
Mr. Ruser. It is part of OSHA recordkeeping that any
employee of a firm that is covered by the OSHA log system will
be captured. The data for those injuries and illnesses to those
workers will be captured.
Chairman Miller. You also indicate in your statement,
toward the end, that BLS has undertaken a pilot program of
employer interviews. Any reason why you are not interviewing
employees?
Mr. Ruser. Our focus is on employers because those are the
entities that provide us with our data. And we have a list of
employers to which we can go to. The Bureau of Labor Statistics
uses a sample frame, which consists of establishments----
Chairman Miller. Well, let me go back to, in the testimony
this morning and in a number of studies referred to here, there
is this suggestion that there is a mismatch between the
interest of the employee and the employer. Why would you not
conduct discussions with the employees about the reporting
system?
Mr. Ruser. I think that would have to be done by another
agency that has access to a roll of employees, as opposed to
employers. Our data frame that we work from is of employers and
not the employees.
Chairman Miller. It is about the employer's workplace. It
is about the workplace that the employer runs. A major
component of that workplace would be employees.
Mr. Ruser. Yes, sir. And I think that perhaps another
agency, such as the National Institute for Occupational Safety
and Health, could explore, as----
Chairman Miller. Are you arguing that you don't have
authority to talk to them?
Mr. Ruser. We have a list of establishments that we go to,
sir. And so we----
Chairman Miller. Yes, and inside of those establishments
are employees----
Mr. Ruser. Yes, of course there are employees.
Chairman Miller [continuing]. Which is the subject of this
hearing.
Mr. Ruser. But we don't have that list. We feel that our
authority is to go and talk to----
Chairman Miller. Hello? You just--you are like--I mean, you
go in to talk to the employer. You can't ask to talk to
employees in that same establishment?
Mr. Ruser. At this time, sir, we are focusing on talking
with employers about their----
Chairman Miller. So you have chosen not to talk to
employees?
Mr. Ruser. For this study, we have chosen not to talk
with----
Chairman Miller. So this study will only be about
employers?
Mr. Ruser. It will be about----
Chairman Miller. And we will have half the picture when
this study is all done.
Mr. Ruser. We are hoping to understand the decisions that
employers make about what they record on OSHA logs and how they
file workers' compensation claims. And this impacts, of course,
the kind of information that we receive.
Chairman Miller. Dr. McLellan, can we get there without
talking to employees on an official capacity as to what is
taking place in the workplace?
Dr. McLellan. I can't speak to the regulatory authority of
the BLS, but I would certainly concur that talking to the
employees is important.
Chairman Miller. Dr. Rosenman, Mr. Fellner suggests that
this is just a mismatch of data. We have got people looking at
different databases, and I think even Dr. Ruser suggested that
we have different databases here. Is that accurate?
Dr. Rosenman. Well, I think the bottom line is we want to
know how many occupational injuries and illnesses occur. And
so, you know, do you dismiss worker comp data because you say
it has different definitions? To me, those are injuries and
illnesses, and they need to be considered. And, clearly, all
the medical databases--the hospital discharge data, the
emergency room data--is being ignored.
And so, I would say, no, it is not a mismatch. It is just
there is a lot more out there, and we need to be counting that.
Chairman Miller. Mr. Fellner, do you discount that
information?
Mr. Fellner. Of course not. I don't discount it at all.
It----
Chairman Miller. What does it tell you?
Mr. Fellner. If this country wants to go in the direction
of discarding the recordkeeping regulation that is promulgated
pursuant to----
Chairman Miller. It is not a question of discarding it. It
is a question of what does the additional evidence outside of
that system suggest to you.
Mr. Fellner. It suggests that there are three times more
apples than there are oranges. OSHA counts oranges----
Chairman Miller. Or a third more amputations than there
were.
Mr. Fellner [continuing]. Dr. Rosenman counts apples. If
this country wants----
Chairman Miller. No, he was counting fingers, I think, or
amputations.
Mr. Fellner. No, not at all.
Chairman Miller. Wasn't that in your testimony----
Dr. Rosenman. I would strongly disagree. We are all
counting the same fruit. We are talking about work-related
injuries and illnesses.
The number of fatalities doubled. Now, are you going to say
those weren't work-related fatalities? I mean, there is no
question. We are not talking about pain. We are not talking
about musculoskeletal disease. We are talking about dead
people, that there is no question they died from their work.
And when you went beyond the employer-based survey, you doubled
the number of workplace fatalities.
And that is what I am suggesting. We need a system that
counts all the other injuries, non-fatal, and illnesses that we
are missing.
Chairman Miller. And what was the situation with respect to
amputations, in your testimony?
Dr. Rosenman. So I am aware, as I sit here today, of two
studies on amputations, one in Michigan, where we estimate that
the current system misses a third of amputations. And there is
a study from the University of Minnesota that has similar data,
that, again, in Minnesota, a third of amputations were being
missed by the current system.
Chairman Miller. Mr. Whitmore, just quickly because we are
running out of time. We have a vote. I am sorry, you can't see
behind me. But we have a vote, and we have got 2 minutes left
to get to the floor.
You cited at the very end of your testimony a series of
facilities that had very, very low rates. You are telling us
that that is just not plausible, that that couldn't happen in
that kind of a facility, a steel mill could have no----
Dr. Rosenman. To say I was highly skeptical would be an
understatement.
And you have to understand, Chairman Miller, that when they
are talking about workers' comp and OSHA recordkeeping, most
compensable cases are OSHA recordable. The reverse is not true.
Most of the OSHA recordables are not compensable. But most of
your compensables are recordable under the OSHA recordkeeping
criteria. That is something we have known for years.
Chairman Miller. We are going to have to come back for the
questioning. Hopefully we will return in about 20 minutes. So
the committee will stand in recess at this point.
[Recess.]
Mr. Hare [presiding]. The hearing will now reconvene.
I would now like to recognize the ranking member, my friend
and colleague, Congressman McKeon, for 5 minutes.
Mr. McKeon. Thank you very much.
Mr. Fellner, your testimony suggests that comparing
workers' compensation claims to OSHA recordable injuries is an
inappropriate comparison. I think we were discussing that,
talked a little bit about that, and I think you didn't get a
chance to fully explain that. Can you elaborate on that?
Mr. Fellner. Thank you, Congressman McKeon. I would be
delighted to do so.
The cliche I used before was it is like counting apples and
oranges. Let me be a little bit more specific in that regard.
Any attempt to compare a single OSHA recordkeeping
regulation, no matter how complex, with worker compensation
regimes begins with the following problem: There is no single
workers' compensation regime; there are 50 of them. And each
one is distinct unto itself, insofar as to how it categorizes
and compensates for various injuries and illnesses.
Two, with respect to the universe of employees that are
subject to OSHA jurisdiction and recordkeeping, once again it
is apples and oranges. Workers' compensation, by and large,
includes self-employed individuals. It includes federal, state
and local individuals. It includes a variety of other
individuals that are not subject to OSHA jurisdiction. The 10-
employee-or-less exception to OSHA jurisdiction immediately
comes to mind.
So the universe that is looked at, when you look at
workers' compensation injuries and illnesses, is a much
broader, a much more expanded universe than is involved in OSHA
recordkeeping.
Number three, the definition of what constitutes an injury
on the one hand and, number two, whether it is workplace-
related on the other hand could not be more different in the
workers' compensation--in the 50 workers' compensation contexts
than exists in OSHA.
OSHA has its own definitional framework. The 50 regimes
have their definitional frameworks. To suggest that one can
simply look at a workers' compensation list of injuries and
illnesses and transpose them to OSHA recordkeeping and say,
``Therefore, there is something deliberately going on,'' as is
suggested by the title of this hearing, something deliberately
going on to cook the OSHA books, is a misconception that I
would like to dispel.
Mr. McKeon. Thank you very much.
You know, I listened carefully to all of your testimony.
And I think you all have very sincere--you are all coming at
this from different directions, but very sincerely. But it
looked to me like the story, again, of the elephant, with the
three blind men trying to describe it. One person touches the
side of the elephant and says an elephant is a wall. Somebody
grabs the leg and says it is like a large tree trunk. And
somebody grabs the tail and says it is a rope. I mean, you have
all heard the story. And that is what I gather here.
Mr. Whitmore, your testimony says this happened under
Democrat and Republican regimes, the problems that you have
with this. It is not a partisan thing, although, you know,
probably the fact that we are doing it now with a Democratic
Congress and a Republican administration kind of, you know,
tends to think, well, it is all a Republican problem that we
are going to expose.
I am glad we are having the hearing, because I come from a
small-business background, and I am starting to think, you
know, did we report all of our injuries? Did we know of all of
our injuries? We didn't have some of--ours was retail business,
so we didn't have some of the problems that Mr. Span talked
about, you know, where you have warehousing. We didn't have
that kind of a situation with big equipment and that kind of
stuff.
But I can see problems; I don't know exact answers. And I
think we are going to come up with a lot more questions today
than answers. But I, again, appreciate you all being here. And
I know, as we get all of your full testimonies in the record
and go through the questions we have here today, it probably
would lead to we should have more hearings to find out more of
what is going on.
And my time has expired, Mr. Chairman. I yield back.
Mr. Hare. I thank the gentleman.
The chair now recognizes the gentleman from Maryland, Mr.
Sarbanes, for 5 minutes.
Mr. Sarbanes. Thank you, Mr. Chairman. I am glad we are
having this hearing today.
About 15 years ago, I worked on a report with an
organization called the Public Justice Center in Maryland, and
we entitled it--it was a look at the poultry industry in
particular, and the name of the report was, ``The Disposable
Workforce,'' because what we found was a lot of evidence of
some of the issues that have been described in the Charlotte
Observer series.
But, in particular, what was happening was, if you got
hurt, you were gone. And that is why the workforce was
disposable. They didn't have access to care if they got hurt.
And the employers, in those instances, were taking advantage of
the demand for the work to basically sideline people if they
suffered an injury.
So I am very keen on the discussion that we are having
today. But I am very focused, as well, on what we can do about
it, in terms of raising the vigilance within OSHA.
And one of the questions I had is, a few of you have
alluded to the fact that there are, sort of, bonuses and
incentives out there that reward--I mean, you know, in addition
to, sort of, the general reputation of a company for having a
low injury report, that inside the company there are incentives
and bonuses for medical people and others, human resources,
whatever it is, if that count is low.
And I wondered if anyone would speak to--maybe we can start
with Dr. Rosenman--speak to the question of whether that is
just a practice that ought to be banned or prohibited or curbed
in some way and what the potential to do that is.
Dr. Rosenman. I think there certainly are practices out
there as you describe that discourage workers from coming
forward. And some are incentives, and some are, sort of, almost
punishment if they do.
The point I was trying to make is we need to go beyond an
employer-based system, which would in some way minimize
whatever incentives or disincentives. And we have all these
additional databases out there, and I think it is very
important--the point I try to make, in terms of acute traumatic
work-related fatalities, where the system has gone beyond
employer-based.
And I think that is very important. I mean, one could, by
law, not allow, maybe, some of these incentives. But I don't
think that is really the total answer. I think it is going
beyond an employer-based system.
Mr. Sarbanes. Do you think there is enough information out
there in data that we could eliminate the undercount problem? I
mean, is that possible to do?
Dr. Rosenman. Well, we have to remember that the whole
system for non-fatal injuries and illnesses is based on a
statistical sampling and an extrapolation. And I think, yes, we
are smart enough to use other data systems to do the
extrapolation, do a better extrapolation, do a better
statistical sampling.
So the answer is, yes, I think going beyond employer-based,
not eliminating the employer reporting, but using all these
other data systems, we could do a much better job at
extrapolating the true numbers of injuries and illnesses in the
United States.
Mr. Sarbanes. Thank you.
Did you want to respond?
Dr. McLellan. I would just like to point out that CSTE,
which stands for the Council for State and Territorial
Epidemiologists, have actually been looking at this issue for
some period of time and have, in a number of states now, an
ongoing project which uses a suite of 19 different occupational
health indicators, really for the purpose of trying to take a
better look at the whole elephant, recognizing that each one of
these databases looks at only the arm or the trunk or whatever,
to use your analogy, sir.
And so I think that there certainly are a number of
databases that could be linked that could improve the
situation. However, I will also say that there are no databases
yet that really help us very much with the chronic occupational
disease issues----
Mr. Sarbanes. Right.
Dr. McLellan [continuing]. And the exposure issues that
cause latent diseases. And that needs further thought, deep
thought, about how to address that issue.
Mr. Sarbanes. Great.
Mr. Whitmore, first of all, I want to thank you for your
testimony today. It is not easy to do what you have done. I
want to acknowledge that you reside in my district, and I am
very proud of that.
You had mentioned at the end of your testimony--and
Chairman Miller cited this as well--statistics on, you know, a
steel plant that has zero reported injuries and so forth.
What is the system--and I guess we heard a little bit about
it--but what is the system inside OSHA where that would pop up
on a radar screen and trigger an investigation or somebody to
go out and check the situation? In other words, how do we
allocate the resources of OSHA across the different workplaces
that we look at?
Mr. Whitmore. Thank you, Mr. Sarbanes. I appreciate your
comments.
The bottom line is this. OSHA inspects when there is a
fatality, when there is a complaint, or if there is a planned
inspection, a targeted inspection. I think the one recently
announced for this coming year has around, like, 4,000
establishments with high lost-time rates.
No one is looking below five. No one is looking at that. I
looked at it and said, you know, guys, we can't go on like
this. There aren't ma-and-pa steel mills out there. These are
large establishments, large employers. We need to go after
them.
Mr. Fellner talks about the SST. I welcome the opportunity,
hopefully at some point today, to talk a little bit about his
numbers. Because in one instance, he said in 2005, I believe it
was, there was 100 audits done--100. We had put in for 400 in
the primary list, okay? They only did 100. Is that going to
tell you everything you need to know about low employer
reporting? I don't think so.
I am not the Ph.D. statistician, never wanted to be, never
will be. I know that these low rates are bogus. I have looked
at them over my career, and they basically shut me down in
1992.
Mr. Sarbanes. Thank you.
Mr. Hare. The gentleman's time has expired.
The chair recognizes the gentleman from Massachusetts, Mr.
Tierney.
Mr. Tierney. Thank you, Mr. Chairman. I have, really, only
one question, and that is to Mr. Whitmore, if I could.
OSHA and Mr. Fellner indicate that the audits are being
conducted that ensure accuracy of employer reports. You seem to
feel otherwise. Would you tell us why those audits, in your
estimate, are not adequate?
Mr. Whitmore. Well, we have to be a little careful here,
because the word ``audit'' is thrown around a lot. And I know
it is hard for you guys; it is hard for me, and I have to deal
with this stuff on a fairly regular basis.
There is a separate program that does records audits
checks, okay? Just to give you an idea, in 2006, the last one I
believe that was done, there were 24 employers in that sample
that had more than 250 employees. I don't think we can say a
whole heck of a lot for all employers above 250 employees based
on a sample of 24.
And the audits are done--the critical thing you have to
understand, that when our auditors in this audit program go in,
they say, I want to see certain folders on certain people, like
Representative Hare, I want to see your medical records. Who do
you think gets them for them? The employer. Who do you think
hands him the folder? The employer.
You are totally dependent because they don't follow up with
a medical access order to go to the hospitals, the clinics that
are used, to check. That is where we get our big cases. Not
every employer is dumb enough to have the goods right there and
hand them over to you. But there are cases where that happens.
And don't get me wrong. There are a lot of really good big
employers around. You know, everybody says, ``I think 90
percent are doing the right thing.'' And my response has been
throughout my career, ``Give me the 10.'' You take care of the
90 that are doing a great job. Give me the 10 that don't care
about their employees and don't care about what OSHA does or
stands for.
Mr. Tierney. Thank you.
I yield back, Mr. Chairman.
Mr. Hare. The chair recognizes the gentleman from Michigan,
Mr. Kildee.
Mr. Kildee. I first apologize. I had another hearing this
morning on Resources Committee, but I read your testimony,
appreciate your testimony.
I can just recall things years ago--I am 78 years old. I
can recall when my dad worked in the plant and how things were
then. We have come a long way since then. But there is human
nature. There is a good side to human nature, and there is the
bad side of human nature. And, at times, we have to make sure
the law protects people from the bad side of human nature.
And I can recall my dad almost being killed in the plant by
being pulled into his machine. He had no capacity to turn his
own machine off. That was a long time ago. That was in the
1930s.
But human nature remains the same. And law protects people
against the shortcomings of employers. And if it is the 10
percent, that is the 10 percent we want to make sure the law
watches and protects their employees from.
And I very much appreciate the testimony this morning.
And thank you, Mr. Chairman.
Mr. Hare. Thank you very much.
Mr. Span, I apologize. I came in late this morning, and I
missed your testimony. I wonder if you could talk a little bit
about your injury and the effects and any repercussions you had
from reporting the injury and, you know, the effect of these
incentive games that they are playing, in terms of being able
to----
Mr. Span. Well, thank you.
And I would like to say that I was hurt doing my job at the
Bashas' warehouse with my supervisor standing next to me. We
were unloading a tractor trailer, and I got some debris in my
eyes, which they did not have any safety glasses or anything
like that, wasn't given to me. And I went home, and the next
day I had an infection, so I went to the emergency room. After
calling my doctor about me being a diabetic, I have to be real
careful.
And I contacted my supervisor at the warehouse and
explained to him what happened, the plant manager, explained to
him what happened and the situation I was in. And the doctor
gave me some days off work because of the infection I had in my
eye. And he then immediately told me to bring in the
documentation and he will take care of it.
So after returning back to work with my doctor's
documentation stating that he kept me off from work for a few
days and the reason why, he did take the papers and he also
punished me by giving me points, stating that I shouldn't have
called in from work, you know, to report that I would be off.
And I did question him and asked him what was the reason
why would I be punished by given points when I got hurt on your
job? And he tried to deny that it ever happened. But my
supervisor explained to him that he was standing there when the
incident did occur.
And, from that point, I don't know what happened, but I
checked the OSHA 200 log, and it is not even mentioned in
there. But I do have the documentation from my doctor that it
occurred, you know?
And this goes on to say that the company that I was
employed with, I don't know what is going on with the
documentation as far as getting them on the OSHA log, but I was
just listening to the guy here to my left stating that the
facts and figures for the OSHA papers are right, and I am just,
you know, from my--I am a worker. I know from experience, not
from what I am told and what I am reading, you know.
They are like witnesses that millions of accidents and
stuff that is happening in the workplace, and people are afraid
to report them because they don't want their wages cut or being
punished by their employer.
Mr. Hare. During your testimony, which I missed, you said
that--and I want to make sure that I heard you right--that you
received 10 minutes of training to drive a forklift?
Mr. Span. Yes, I received----
Mr. Hare. What would you say is the average time for a
person to become reasonable proficient and have it safe to
drive a forklift?
Mr. Span. Well, basically, it can take people up to 6 to 7
months to be properly trained to operate----
Mr. Hare. And you get 10 minutes.
Mr. Span. Pardon?
Mr. Hare. And you get 10 minutes?
Mr. Span. Yes. At Bashas' Corporation, I was only given 10
minutes to drive a pallet jack. Now, I need to remind you that
the equipment that I had to use to perform my job, I would have
to be on heavy equipment all through the 8-hour shift, as well
as the people who was being hired who don't even have a driving
license, to operate these equipment.
That is why if you look at the OSHA report, that the
Bashas' Corporation, the warehouse itself, it explains more
that they have got the average of injury rates anywhere in the
United States. And these are the ones that is being recorded.
Think about the ones that is not being recorded.
Mr. Hare. Well, let me ask you, if I could, Mr. Fellner,
something that is troubling to me. Dr. Rosenman, as I
understand it, did a study in 2003 that showed that there were
693 amputations in the state of Michigan, whereas the BLS
survey estimated only 440 amputations occurred.
Now, you can argue that the ergonomic issues are hard for
employees to diagnose and that their recordkeeping regulations
are complicated, but it would seem to me that amputations
aren't too hard for employers to be able to diagnose. And, yet,
the BLS only estimated 64 percent of the true number of
amputations in Michigan in 1997.
So how can you say there is no evidence of significant
underreporting when you see numbers like this?
Mr. Fellner. I have not had a chance to review Dr.
Rosenman's study, but to the extent that that study relies in
whole or in part on workers' compensation data, to the extent
that it does, then my prior response to Congressman McKeon
would apply. And that is, the extent to which that 680 includes
individuals not subject to OSHA's jurisdiction, then we are
indeed talking about apples and oranges.
Appropriate numbers of amputations were recorded under OSHA
logs, and appropriate workers' compensation amputations
occurred pursuant to his examination.
Mr. Hare. Just one final comment. We may be talking about
apples and oranges, but we are talking about people who have
lost limbs too. And I think that when we have an underreporting
of 60 percent, you know, whoever is responsible for not getting
the numbers correctly--it can be apples and oranges, it can be
apples and anything, but the fact of the matter remains these
are people, these are workers who have been harmed, severely
harmed.
Mr. Fellner. And I do not mean to denigrate any amputation,
God forbid, for one second. The question is whether those
workers were subject to OSHA's jurisdiction. And I would have
to look much more closely at his study in order to make that
determination and respond to your question.
Mr. Hare. My time is up. I will come back to you, Dr.
Rosenman, because I know you wanted to comment on this.
The chair would now recognize the gentlelady from
California, Ms. Woolsey, for 5 minutes.
Ms. Woolsey. Thank you, Mr. Chairman.
And I am so sorry that I have missed most of the questions.
So I am going to ask a question that I think you all can answer
for me. Well, I have two points.
The first point is, the answer to your question probably
has to do with who has hired you to work for them on this,
which I find quite disturbing.
But when we are doing such a poor job, I believe, in
collecting the real data on workforce injuries, and when we
have a hard time reporting severed limbs, amputations, how in
the world do we report health, which isn't obvious, and near-
misses?
I mean, because I was a human resources professional for 20
years, and that was back at the beginning, and we had Cal/OSHA.
And, actually, near-misses made the difference quite often of
whether a person would later on lose an eye because we learned
from an experience or another.
So I don't know who to ask. I actually thought I was going
to ask Dr. McLellan that question and then any of the rest of
you.
Dr. McLellan. Thank you for the question, because it is a
question of significant concern to our members. And most of our
members, when asked by an employer to advise them as to how to
take good measure of how the employer is doing with respect to
health and safety, would advise them to look beyond simply the
OSHA log and very much to include first-aid reports as well as,
as you point out, near-misses.
The difference between a few-millimeter scratch on the
skin, which requires a Band-Aid and might be considered a first
aid or a near-miss, and a significant laceration, perhaps
severe enough to cause an amputation, is luck, not safety.
Ms. Woolsey. Right.
Dr. McLellan. And so the point here is that the OSHA log
itself will not give a true luck for the purpose for which we
really have it, which is to prevent work-related injuries and
illnesses.
The OSHA log even at its best is only going to be a lagging
indicator, and it is a body count. We would really like to be
able to use a suite of indicators that take a look at the
bottom of the iceberg in order to prevent anyone from getting
on the OSHA log for the real reason because it is safe.
Ms. Woolsey. Well, Mr. Span, if an employer had an
appropriate safety committee, would a report internally of
near-misses be a good indicator to the committee of what needed
to be concentrated on?
Mr. Span. Yes, it could be true in some factors. It depends
on actually where you are working at, because of the fact--that
safety committee can basically--people who were inside the
warehouse on site at the job can actually determine what need
to be changed and what steps they may take to make the place
even safer to go to work. You know, it is sad that you have to
go to work and look around you, scared of what is going to
happen or what limb is going to be cut off today.
And just to add on a little bit to this, it is sad that
most of the reason why a lot of this stuff is not being
reported, because of these companies with their private doctors
that they send you to, and these doctors will actually, no
matter--from what my experience in seeing, that you can have
your feet broken, toes broken, they send you back to work the
next day. And then I believe this is the reason a lot of this
is not getting reported.
Ms. Woolsey. Well, would you mind going back the next day
if you weren't losing salary? I mean, light duty?
Mr. Span. Me, personally, I wouldn't go back to your job;
you can basically keep it. Like I said, I am a diabetic, and my
health and----
Ms. Woolsey. No, I mean, it would depend on the situation.
But when an injured worker is ready to go back to work or a
worker in poor health is ready to come back to work, if they
were put back on light duty and with full pay, would there be
any objection to that?
Mr. Span. I am quite sure a lot of people would go back to
work if they are going to get their full pay and be able to
support their family and pursue the American dream, like we all
are. We need to support our families. And, you know, the price
of gas today, who can afford to take off work?
Ms. Woolsey. Well, that is true too.
Yes, Mr. Whitmore?
Mr. Whitmore. Yes, Ms. Woolsey, thank you very much. Real
quickly, near-misses? The really good companies out there, they
are collecting information on near-misses already, because they
understand what you are saying. I think you are right about a
safety and health program; a good one should have that.
This right here is a picture from the Charlotte Observer of
a gentleman's ankle with one, two, three, four, five screws in
it. This wasn't a near-miss. It was a real hit, and didn't get
recorded. It was an oversight by the employer.
Ms. Woolsey. Thank you, Mr. Chairman.
Mr. Hare. The chair recognizes the gentleman from Michigan,
Mr. Kildee, for 5 minutes.
Mr. Kildee. I thank you, Mr. Chairman.
Mr. Span, can you tell us a little more about the effect of
company raffles or other incentive programs in your workplace?
Do they encourage workers to be more safe, or do they encourage
workers to perhaps hide their injuries?
Mr. Span. First, personally, I believe it is--incentive and
raffle, the reason why they company is doing it, to keep people
quiet. Because of the fact that, you know, with the policy that
they have at the company I was employed with, you know, it is
totally unheard of. And they use this tactic to keep the
people's mouth closed. Okay, well, we are going to win an mp3
player or a trip to Hawaii for a week or stuff in this nature
that, you know, that is just what they offered them if you do
not have any injuries in your department. So most of the people
would love to take their wife on a cruise to California, to
Great America or whatever the case may be. So I believe it is
something that they are using to keep people quiet from
reporting these injuries.
Mr. Kildee. Mr. McLellan, could you comment on that?
Dr. McLellan. Sure. Yes, I concur. Our members, we have
been collecting anecdotes. And, for example, one of our senior
physicians reported a case in which an employee came to his
clinic with a very fresh laceration, obviously had just
occurred, requiring sutures. And he asked the physician to
consider this as not work-related, to pretend that it had
occurred the night before, because to consider it work-related
would mean that his entire team would miss out on an
opportunity for a steak dinner.
Mr. Kildee. Okay. Thank you very much.
Thank you, Mr. Chairman.
Mr. Hare. Thank you.
I just wanted to follow up. I know, Dr. Rosenman, you had
something that you wanted to say, and then I maybe have one
question for you.
Dr. Rosenman. Thank you.
Yes, well, this study that was asked about was we reviewed
emergency department data. And so it was worker compensation
data, but we also looked at emergency.
I think it is important, this issue, whether it is within
the scope of OSHA, I mean, as a health-care provider, I am
interested in amputations and I am interested in preventing
amputations. And I think it is too narrow to say, oh, well,
OSHA may not cover this. I think we need to think about work-
related injuries and illnesses and how are we going to prevent
them in the United States.
And one other point I would like to make is, you know, it
is true, the issue that Mr. Fellner has raised about workers'
comp, well, maybe that is a different fruit. But, you know, in
seven states this has now been looked out, and in seven states
they are not being counted in the current annual survey. And in
these studies, these people all had at least 3 lost work days.
So these were people in the workers' comp system. In Michigan,
it was 7 days away from work; in some of the states--because
each state does vary. But in all seven states, people with at
least 3 days away from work were not being counted in our
current statistics.
And, to me, that is not apples and oranges. Those people
were off work because of a work-related injury and illness, and
they were not being counted.
Mr. Hare. Mr. Whitmore, you had something you wanted to
add?
Mr. Whitmore. Thank you, Representative Hare. Appreciate
it. A couple quick things.
As much as I appreciate Dr. Rosenman's testimony, the
mission of the Department of Labor is to take care of American
workers. The mission of OSHA is to take care of American
workers. I am very appreciative of his work. I want my agency
to do its job effectively, honestly and openly.
I want to show you this from the Charlotte Observer series.
This is their safety program. It is a T-shirt, and it says,
``Strut McClucker, Columbia Farm's Safety Mascot.'' I guess
when I get fired, I can put in for this job. ``Two million safe
hours without a lost-time accident.'' That is what you get.
That is what you get when you work there, as well as all these
other things I have here. That is their program.
If OSHA can't or won't do its job, it is up to you all to
make it do the job that we are paid by from the American people
to do.
Thank you.
Mr. Hare. Thank you, Mr. Whitmore.
Let me thank all the panel for coming.
I just wanted, in closing, to say something here. It seems
to me Mr. Whitmore brought up a great point. We have 90 percent
of the employers are doing the right thing and reporting this.
Our job is to make sure that those people who work with the 10
percent who aren't--I am thoroughly convinced there is
underreporting going on.
The T-shirt, you know, maybe, Mr. Span, I was just thinking
of the T-shirt, you could wear that to Adventure Land or
something. You know, it is just incredible to me that we have
accidents occurring and yet we don't report it. The pictures, I
think, speak much louder than probably anybody could.
I will tell you that Chairman Miller is a great chairman.
And this is great hearing, and I had the honor of being able to
chair the last part of it. It has been my first chance to sit
in this chair, but----
Ms. Woolsey. You did well.
Mr. Hare. Thank you.
But he did bring up a good thing.
I think, too, one last thing. I think it is important that
we just don't talk to the employers when we go in to find out
what is going on in that factory or that plant. You have to
talk to the workers. They do the work every single day. They
are the ones getting hurt. They are the ones that have seen
their coworkers getting hurt.
If we just really only talk to the employer, we will never
really, as the chairman said, ever get a real picture of what
is actually going on there. And I hope someday we will get to
where workers actually had the very same rights and opportunity
to be able to stay safe.
Let me just remind the members, you will have 14 days to
submit additional materials for the hearing record.
I thank all of you for taking time out of, I know, busy
schedules to be here.
This hearing is adjourned.
[The statement of Mr. Altmire follows:]
Prepared Statement of Hon. Jason Altmire, a Representative in Congress
From the State of Pennsylvania
Thank you, Chairman Miller, for holding this important hearing on
OSHA's underreporting of workplace injury and illness statistics.
Several recent academic studies have concluded that OSHA
significantly underreports the number of workplace injuries and
illnesses that occur in the United States. Anecdotal evidence from
newspaper articles and workers support the findings of these studies
and suggest that, at least in some cases, workers are being pressured
to not report injuries by their employers.
OSHA has long used the declining number of reported workplace
injuries and illnesses as evidence of their effectiveness and to defend
their policies. Thus, determining whether or not OSHA has been
underreporting injuries and ensuring that OSHA's future reporting is
accurate is not only important for transparency, but also for making
good public policy.
Thank you again, Mr. Chairman, for holding this hearing. I yield
back that balance of my time.
______
[The statement of Ms. Sanchez follows:]
Prepared Statement of Hon. Linda Sanchez, a Representative in Congress
From the State of California
Chairman Miller, I thank you for holding this very important
hearing on the under reporting of workplace injuries. As one of the Co-
Chairs of the Labor and Working Families Caucus, I have been working
hard over the past several years to draw attention to workplace
illnesses, injuries, and fatalities.
Sixteen workers are killed on the job every day in America. And
hundreds more are the victims of illness and injury. Yet OSHA sits idly
by while construction cranes topple across the country and workers in
the microwave popcorn industry have their lungs and lives destroyed by
diacetyl.
Current OSHA appointees argue that workplace deaths and injuries
have declined during their tenure. Could one reason be that OSHA simply
isn't very good at enforcing its reporting rules? In its relations with
employers, it seems to me OSHA is more of a lap dog than a junkyard
dog.
As we will hear in today's testimony, taking OSHA's work-related
injury statistics at face value is about as naive as believing a child
who says ``I didn't eat the cookie,'' as he looks at you sweetly with
crumbs all over his face and hands.
The job-related deaths, injuries, and diseases that plague the U.S.
workplace are preventable. But OSHA, under the current Administration
as well as past Administrations, has simply underperformed. It hasn't
been funded, at least at any time that I can recall, at anywhere near
the levels necessary to promote a true culture of safety and respect
for those getting the job done every day in factories, warehouses, and
offices across the country.
And during the Bush Administration, the chronic under funding has
been combined with an effort to minimize enforcement and maximize
friendly relations with employers. Fox * * * henhouse. It's and old
cliche. But it's never been more relevant.
The Bush Administration's approach to overseeing workplace safety
has been a lot like its approach to overseeing the Enron debacle and
the mortgage crisis: say little, do less, and direct attention
elsewhere.
And in the meantime, constituents of mine work at the Ports of Long
Beach and Los Angeles, contracting cancer and heart and lung diseases
after years of breathing and coming home covered in particulate matter
from diesel and other pollutants.
Working for a living shouldn't be deadly.
Mr. Chairman, for workers in my district, and for workers across
the nation, I thank you for holding this hearing. And I hope that it is
one more chink in the wall of silence that surrounds workplace dangers.
______
[Whereupon, at 12:52 p.m., the committee was adjourned.]